CAS 2005/A/918 K. v. FIS

CAS 2005/A/918 Kowalczyk v/ FIS

• Cross-country skiing
• Doping (glucocorticosteroid)
• Erroneous classification of Dexamethason
• Unilateral and procedurally incorrect attempt by the FIS
• Doping Panel to reconsider the doping offence
• Difference of the sanctioning regimes contained in Art. 10.2 and 10.3 FIS-Rules
• Burden of proof
• Measure of the athlete's negligence

1. If an ineligibility sanction is to be considered in an Article 10.3 FIS-Rules, “first violation” case, the penalty reduction possibility set forth in Article 10.5 FIS-Rules cannot supersede, exclude or otherwise diminish the right also granted to the athlete under Article 10.3 FIS-Rules to plead against its imposition.

2. The Article 10.5.1 FIS-Rules defence of “no Fault or Negligence” must always be available to the accused athlete, regardless of whether an Article 10.2 FIS-Rules or an Article 10.3 FIS-Rules sanction is applicable. With regard to the Article 10.5.2 FIS-Rules defence of “no significant Fault or Negligence”, however, it would contradict the ratio legis of the “no enhancement” defence under Article 10.3 FIS-Rules if the reduction limit under Article 10.5.2 FIS-Rules (“not less than one half of the minimum period”) were to apply in parallel to the minimum “warning and reprimand” penalty for the first violation involving a Specified Substance.

3. Upon the athlete’s prima facie showing that her use of the substance was for medical reasons and was not intended to enhance performance, the burden of proof shifted to the FIS to prove the contrary, namely that the athlete used this substance as a doping agent. In order to provide this rebuttal, the FIS Doping Panel should have revoked its decision and called for a new hearing of the merits of the dispute on the basis of Article 10.3 FIS-Rules.

4. The athlete’s negligence derives not from any ignorance of the prohibited nature of Dexamethason; her negligence lies rather in her lack of knowledge and application of the proper TUE procedures for the Specified Substance in question. The measure of this negligence does not justify a one year term of ineligibility.

In February 2005 the International Ski Federation (FIS) has reported an anti-doping rule violation against the Athlete after her sample tested positive for the prohibited substance Dexamethasone without a TUE.

The Athlete admitted the violation and explained that she and her doctor had already completed an Abbreviated Therapeutic Use Exemption (ATUE) form in December 2004 which she alleges to have submitted to the Polish Ski Association, but neglected to show to the testing authorities at the time of the doping control in January 2005. Following the notification of the violation the Athlete's application for a TUE was rejected in March 2005 by the Therapeutic Use Exemption Committee (TUEC).

Considering the Athlete's negligence the FIS Doping Panel decided on 13 June 2005 to impose a 2 year period of ineligibility on the Athlete.

Hereafter the Athlete appealed the FIS decision with the Court of Arbitration of Sport (CAS). Yet, at the same time the FIS Doping Panel had decided on 12 July 2005 to impose a new reduced sanction of 1 year instead of the imposed 2 years of ineligibility.

The CAS Panel holds that the one year period of ineligibility unilaterally imposed by the FIS Doping Panel has not only deprived the Athlete of her fundamental right to a fair hearing, but it also does not stand in fair and just proportion to the measure of her negligence. The Panel holds that a period of ineligibility ending 8 December 2005 provides the fair and proportionate measure of sanction.

Therefore on 8 December 2005 the Court of Arbitration for Sport decides:

1.) The decision rendered by FIS Doping Panel on 13 June 2005 and amended by its announcement of 13 July 2005 shall be replaced by a de novo decision on the merits of this case.

2.) The Appellant is disqualified from all individual results obtained in the U23 OPA Intercontinental Cup Competition held on 23 January 2005. The period of ineligibility to be imposed upon the Appellant shall commence on 23 January 2005 and shall end on 8 December 2005.

(…)

Facts
Ryan Newport (player) was reported for a violation of the Anti-Doping Rules under the Tennis Anti-Doping Program 2005. During an ATP sanctioned tournament Odlum Brown Vancouver Open in Vancouver, Canada, an in competition doping test was conducted at Jule 30, 2005. His A sample indicated the presence of Cannabis (11-nor-9-carboxy-delta-9-tetrahydrocannabinol), the B sample analysis confirmed the presence of the prohibited substance.

History
The player visited friends in Houston before leaving to the Vancouver tournament. There he admits to having participated in the passing around of a joint after having a few drinks. This event must be the cause of the positive analytical result. The player imposed upon himself a suspension till the time of the decision.

written submission player
The player asserts that this was just a one-time event. The player would accept a 60 days period of ineligibility.

written submissions ATP
The presence of a cannabis metabolite is a doping offense and has been admitted by the player. Cannabis is a specifies substance under the rules.
The ATP has no evidence the player didn't use the cannabis for enhancing sport performance.
Being a first offense a 60 days period of ineligibility is issued with consideration of the time in voluntary suspension.
The period of ineligibility is off season but the rules don't adjust the commencement.

Decision
The tribunal makes the following orders:
1. The player admitted a first doping offense thereby establishing a doping offense. The doping offense involved the use of a specified substance cannabanoids referred to in appendix three "The 2005 Prohibited List".
2. Disqualifies the results obtained at the ATP sanctioned Tournament in Vancouver, B.C. Canada in July 2005. Any medals, titles, computer ranking points and prize money (without reduction for tax) obtained at the competition are forfeited. The commencement of the forgoing consequences is to be effective in accordance with the rule.
3. The period of ineligibility otherwise applicable is determined to be two months. In accordance with the rules the ineligibility shall commence on November 16, 2005.
4. Fairness dictates that there is no disqualification of the results from the time of sample collection until the commencement of the period of ineligibility.

The Respondent, Mark Hainline ("Hainline"), is an athlete in the sport of archery.
On April 16,2005, Hainline participated in the Arizona Cup and placed third.

As of August 13,2004, the USADA protocol implemented the mandatory provisions from the World Anti-Doping Code (the "WADA Code") into the USADA Protocol, "Which include the WADA definitions of anti-doping rule violations, burden, of proof prohibited list and sanctions.

The parties entered into Stipulations of Uncontested Facts and Issues on August 11, 2005. In addition to the agreement regarding the applicability of the USADA Protocol and the WADA Code, the parties agreed that:
- Hainline did not stipulate that he agreed to the application of or had knowledge of the provisions of the USADA Protocol or WADA Code at the time.
- Hainline refused to be tested when requested by USADA. ("Test Refusal")
- Hainline did not contest that his Test Refusal is a first doping offense.
- The period of ineligibility will be a maximum of two (2) years beginning on the date of the decision with credit being given for the time Hainline served a provisional suspension beginning on April 27, 2005, to a minimum of one (1) year.
- Hainline was disqualified from the Arizona Cup and forfeits any and all competitive results received subsequent to the Arizona Cup and this hearing.
- Hainline will testify that he used a prohibited substance immediately prior to competing at the Arizona Cup on April 16, 2005, and that he subsequently refused to allow the testing.

The Panel decides as follows:
- A doping violation occurred on the part of the Respondent.
- The minimum suspension for a first offender of two (2) years, to take place effective from April 16,2005, is imposed on the Respondent pursuant to WADA Code Article 10.2.
- The Respondent will receive credit for the provisional suspension that he began serving on April 27, 2005.
- The Respondent had already been disqualified from the Arizona Cup and had forfeited, any and all competitive results received subsequent to the Arizona Cup.
- During the same two-year period of ineligibility, the Respondent shall not have access to the training facilities of the USOC Training Centers or other programs and activities of the USOC, including grants, awards or employment.

The New Zealand Sports Drug Agency (NZSD) and the New Zealand Federation of Bodybuilders (NZFBB) have reported an anti-doping rule violation against the Respondent after her sample tested positive for the prohibited substance Clenbuterol.
After notification by the NZFBB the Respondent filed a statement in her defence and was heard for the Tribunal.

The Respondent was born and raised in the Czech Republic but has lived in New Zealand since 1999. At the end of 2004 she visited family in the Czech Republic and caught the flu. She used medicines belonging to her mother to treat this and one of these was Spiropent. Spiropent is a trade name for prohibited substance Clenbuterol. Respondent brought the Spiropent tablets back to New Zealand and used these again to treat flu like symptoms she developed three to four days before the competition.

Although she may not have received information about drugs before she competed in the Championships, she admitted she was aware of the need to avoid drugs and of the need for sport to be drug free. She took medication a few days before the Championship without checking what she was taking and the likely effect on her. The Respondent took no steps to ensure that the Spiropent was not a prohibited substance. Her inaction amounted to significant fault.

The Sports Disputes Tribunal of New Zealand decides to impose a 2 year period of ineligibility on the Respondent starting on 22 May 2005. In addition her competition results are disqualified.

Facts
Todd Perry (player) was reported for an Anti-Doping rule violation. During an ATP sanctioned Tour in Capablanca, Morocco on April 7, 2005, an in-competition doping test showed the presence of salbutamol in his A sample. The player used his right to have a hearing before the Anti-Doping Tribunal,

History
The player suffered from asthma since his childhood, for this he uses bronchodilator medication terbutaline administered by inhaler. For this an abbreviated therapeutic use exemption. However the tournament doctor supplied him with salbutamol. The player didn't knew he got another medication.

written submissions player
Counsel for the player wants to govern the procedure by the laws of the state of Delaware to apply for an estoppel precluding the ATP form enforcing its Anti-Doping Rules (ADR).
The player thought by using the tournament doctor he followed the ADR.
The player wasn't aware he used other medication. That the tournament doctor failed to notify the player is also a reason for an estoppel.
The doctrine of proportionality ought to be used.

written submissions ATP
The ATP submits that the player should not be found to have committed a doping offense.
Tournaments guidelines prescribed the salbutamol inhaler.

reasoning
The counsel for the player resquested for an estoppel, however the tournament doctor is not a representative of the ATP, he is assigned but not an employee of the ATP. Therefore the doctrine of an estoppel can't apply.

Decision
The tribunal makes the following orders:
1. A doping has occurred because of the presence of a prohibited substance for which no therapeutic use exemption had been granted.
2. ATP is ordered to disqualify the individual result at the Casablanca Competition, it is further ordered that there be a forfeiture of any medals, titles, computer ranking points and prize money obtained at the competition. The disqualification of the results and other consequences will have effect from the time provided.
3. The player is found to have committed "No Fault or Negligence" in respect of the use of the specified substance, the period of ineligibility is eliminated. Furthermore, the findings of the tribunal with respect to a doping offense are specifically limited in their effect as prescribed as not being considered a doping offense for purposes of calculating any future infractions of the Anti-Doping Rules should occur.
4. As a consequence of the finding of "No Fault or Negligence" for the doping offense it is ordered that no other disqualification of results other than as referred to shall arise in this case.
5. By rule the ATP is ordered to issue a warning and reprimand to the player because of the decision.

CAS 2005/A/908 World Anti-Doping Agency (WADA) v. Coetzee Wium

• Paralympic powerlifting
• Doping (testosterone)
• Departures from standards with regard to transportation, collection and testing
• Burden to establish the cause of the Adverse Analytical Finding
• Standard of proof required by CAS

1. In a case where departures from the WADC International Standard for Testing and/or the WADA Technical Documents for Laboratory Analysis are established, the question a CAS panel has to answer is: “Do these deviations cast sufficient doubt on the reliability of the test results to an extent that the finding of a Prohibited Substance in the athlete’s urine was not sufficient to establish a doping offence to the comfortable satisfaction of the Panel”?

2. If an athlete establish that departures occurred during transportation, collection and/or testing, then the Anti-Doping Organisation shall have the burden to establish that such departures did not cause the Adverse Analytical Finding.

3. The standard of proof required by CAS in all such cases is comfortable satisfaction, that is, greater than mere balance of probability but less than proof beyond a reasonable doubt.

On 14 March 2005 the IPC Anti-Doping Committee decided to impose a 2 year period of ineligibility on the South African Parathlete Coetzee Wium after he tested positive for the prohibited substance Testosterone with a T/A ratio above the WADA threshold.

Thereupon on 2 May 2005 the IPC Management Committee decided to reinstate the Parathlete because a significant departure of the ISTI had occurred.

The IPC deemed that the chain of custody was broken because following the sample collection the Parathlete's samples were left unattended for 45 minutes, during which time they sealed Berlinger Test Kit had been moved around by a cleaning lady. Accordingly the IPC could not establish, on the balance of probabilities, that these events had not caused the Adverse Analytical Finding.

Hereafter in June 2005 the World Anti-Doping Agency (WADA) appealed the IPC 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.

The Parathlete asserted that departures from standards occurred with regard to transportation, collection and testing. He argued that the case was conducted far away from standards.

WADA admitted that a departure from standards did occur, but holds that this was of minor significance and that, by no means, did this departure have any impact on the result of the IPC establishing an Adverse Analytical Finding for Testosterone in the Parathlete’s sample.

Following assessment of the evidence the Panel determines that:

• The delayd pick-up by DHL of the Athlete's samples resulting in a delay of one day could not cast any doubt on the reliability of test results under the given circumstances.
• The athlete could not rebut the presumption that a WADA-accredited laboratory conducted Sample Analysis and custodial procedures in accordance with the WADC International Standard for Laboratories.
• No departure from the International Standard, which would undermine the validity of the Adverse Analytical Finding, was established, once the exogenous origin of the Prohibited Substance had become clear.

Therefore the Court of Arbitration for Sport decides on 25 November 2005 that:

1.) The appeal filed by WADA on 21 June 2005 is upheld.

2.) The decision of the IPC Management Committee of 2 May 2005 is annulled.

3.) Coetzee Wium is sanctioned under art. 12.2 IPC Anti-Doping Code by a two (2) years ineligibility period, which starts on the date of this decision. The period of suspension from 13 December 2004 – 2 May 2005 shall be credited against the total period of ineligibility to be served.

4.) Coetzee Wium is sanctioned under art. 12.7 IPC Anti-Doping Code by the disqualification of all competitive results obtained by Coetzee Wium from 13 December 2004. This includes forfeiture of any medals, points and prizes.

(…).

Facts
The French Cycling Federation (Fédération Française de Cyclisme, FFC) charges respondent M48 for a violation of the Anti-Doping Rules. During a cycling event on April 13, respondent provided a sample for doping test purposes. Analysis of the sample showed the presence of acetazolamide, which is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list.

History
The respondent contests the laboratory results and arranges an own toxicological report on his own expense which indicates that none of his medications contained the prohibited substance.

Decision
1. The sanction is a period of ineligibility of one year in which respondent can't take part in competition or manifestations organized or authorized by French sport federations.
2. The decision start on the date of the notification.
3. The decision will be published and sent to the parties involved.

Related case:
KNCB 2005 Decision Appeal Committee 2005072 B
April 7, 2006

The board of the Royal Dutch Cricket Board (KNCB) has reported against the defendant because of the discovery of a prohibited substance (Article 3) and/or attempted use of prohibited substance and/or method (Article 4). His sample for doping test, taken on July 17, 2005 was tested positive.

The oral hearing took place November 9 2005. By e-mail the defendant confirms he will attend this oral hearing without representation unless it will be better for his case. He didn't use the forbidden substance to enhance his performance and is not addicted to it. He just used the substance during a concert without thinking about the consequences. He is deeply ashamed about what he did regarding to his teammates, friends and family. It also put him in problems regarding his work.
Also he is ashamed for putting the sport in a bad spot regarding to the youth and elderly who enjoy this sport. His only addiction is cricket. Hopefully all this will be taken into account at the hearing.

During the Oral hearing the defendant emphasizes that he didn't use the prohibited substance to enhance sport performance. All earlier tests were negative.

The Disciplinary Committee considers the following facts in her judgement:
Benzoylecgonine is a decomposition product of cocaine was found on during a doping test. Cocaine is on the prohibited list of the anti-dope code.
The defendant had informed the DCO that is was likely he had used a prohibited substance.
The committee believes the defendant it was used for recreational use not for enhancing his sport performance. It was thoughtless of the defendant to use the prohibited drug.

It is confirmed that the defendant used a prohibited substance. The substance was Benzoylecgonine is a decomposition product of cocaine. Cocaine is listed as a prohibited substance and method due to the prohibited list of January 1, 2004
In her verdict art. 3, 37 and 39 of the anti-doping code of the KNCB were regarded.
The substance is not specifically mention on the World Anti-Doping Code, for that reason art. 37 will be used. Related to art. 3 the suspension will be 2 years.
The Disciplinary Committee opinion about the prohibited substance is that the use of it is not related to the sport or enhance the sport performance. There are doubt that cocaine would have a positive effect on necessary skills concentration, quickness of response and control.
The purpose of Anti-Doping Code is not the goal of the substance but purely the presence of the substance.
There is no liberty of justice related to the intentions of the defendant. The presence of the prohibited substance justifies the punish ability, except the exception mentioned in art. 39.
The Disciplinary Committee has concluded that there is no connection to the use of the substance to enhance sport performance. Therefore she has great objections for the required penalty and the lack of room of judgement under individual circumstances. The use of the substance didn’t influence the sport or enhanced the performance. The Anti-Doping Code doesn’t leave any room for this.
Due to the standards involved by art. 37 and 39 no significant fault or negligence doesn’t comply.
The announcements in the media towards this case didn’t influence the judegment of the case.
Towards the privacy of the defendant, the Anti-Doping Code doesn’t have any regulations for privacy but some reserve is useful.

Decision:
The Disciplinary Committee award is a 2 years period of ineligibility commencing on the last match of the defendant.

Multi residue screening of intact testosterone esters and boldenone undecylenate in bovine hair using liquid chromatography electrospray tandem mass spectrometry / Michel W.F. Nielen, Johan J.P. Lasaroms, Patrick P.J. Mulder, Johan Van Hende, J. Hans A. van Rhijn, Maria J. Groot

• Journal of Chromatography B 830 (2006) 1 (2 January), p. 126-134
• PMID: 16301005
• DOI: 10.1016/j.jchromb.2005.10.028

Abstract

The abuse of esters of natural androgenic steroids in cattle fattening and sports is hard to control via routine urine testing. The esters are rapidly hydrolysed in vivo into substances which are also endogenously present in urine. In veterinary control strange findings of 17beta-testosterone and 17alpha-testosterone in urine are often ignored because of the lack of statistically sound reference data of naturally occurring levels. An interesting alternative for inconclusive urine analyses in veterinary control can be provided by the analysis of the administered steroids themselves, i.e. the analysis of intact steroid esters in hair. Unfortunately, the analysis of intact steroid esters is complicated not only by the vulnerability of the esters which precludes alkaline hydrolysis of the hair, but also by the wide polarity range of short and long-chain esters yielding very poor recoveries for either the one or the other. In this study, a multi-steroid esters LC/MS/MS screening method is presented for trace analysis of the synthetic intact esters of 17beta-testosterone and the undecylenate ester of 17beta-boldenone in bovine hair. The method, requiring only 200 mg of pulverised hair, features a mild digestion procedure using tris(2-carboxyethyl)phosphine hydrochloride (TCEP) and the use of four deuterium-labelled steroid esters as internal standards covering the wide polarity range of the analytes. In spiked hair samples for most of the analytes the limit of detection and the accuracy using isotope dilution were 2-5 ng/g and 97-105%, respectively. The applicability was demonstrated using hair samples from a controlled experiment in which six bovines were injected intramuscularly with two different doses of two commercial mixtures of testosterone esters, and with two different doses of boldenone undecylenate. Depending on the dose all administered testosterone- and boldenone esters were found to be incorporated in bovine hair following a single intramuscular injection, except testosterone propionate which dose might have been too low.

Sudden Cardiac Death During Anabolic Steroid Abuse : Morphologic and Toxicologic Findings in Two Fatal Cases of Bodybuilders / Vittorio Fineschi, Irene Riezzo, Fabio Centini, Enrico Silingardi, Manuela Licata, Giovanni Beduschi, Steven B. Karch. - (International Journal of Legal Medicine 121 (2007) 1 (January); p. 48-53).
- PMID: 16292586.
- DOI: 10.1007/s00414-005-0055-9

Abstract

We report two cases of sudden cardiac death (SCD) involving previously healthy bodybuilders who were chronic androgenic-anabolic steroids users. In both instances, autopsies, histology of the organs, and toxicologic screening were performed. Our findings support an emerging consensus that the effects of vigorous weight training, combined with anabolic steroid use and increased androgen sensitivity, may predispose these young men to myocardial injury and even SCD.