CAS 2005/A/847 Hans Knauss v. FIS

• Alpine skiing
• Doping (norandrosterone)
• Contaminated nutritional supplements
• Reduction of the sanction when the athlete both bears no significant fault or negligence and provides substantial assistance in establishing an anti-doping rule violation by another person
• Principle of proportionality

1. The risk of contamination and/or mislabelling in nutritional supplements cannot and shall not have remained ignored by an experienced athlete who has competed at the highest levels for many years taking into consideration the express warnings of numerous federations and anti-doping organisations that clearly and repeatedly over the past years have emphasized the risk of contamination and/or mislabelling in nutritional supplements. In such case, the standard of care required for “no fault or negligence”, namely utmost caution cannot be considered.

2. The requirements to be met by the qualifying element “no significant fault or negligence” must not be set excessively high. The higher the threshold is set, the less opportunity remains for differentiating meaningfully and fairly within the (rather wide) range of the period of ineligibility sanctioning the fault or negligence. But the low end of the threshold must also not be set too low; for otherwise the period of ineligibility of two years laid down for an anti-doping rule violation would form the exception rather than the general rule.

3. Linking the applicability of the rule providing for a reduced period of ineligibility in case of the athlete’s substantial assistance in establishing an anti-doping rule violation by another person to a formal criterion such as whether and to what extent a federation may or may not have jurisdiction over this other person or the facts disclosed by the athlete under the anti-doping rules of the federation is an arbitrary and unsuitable criterion for distinguishing conduct which is worthy of preferential treatment from other conduct which does not qualify for such treatment.

4. In the opinion of the Swiss Federal Tribunal, sports bodies can limit in their rules the circumstances to be taken into account when fixing sanctions and thereby also restrict the application of the doctrine of proportionality. However, the sport associations exceed their autonomy if these rules constitute an attack on personal rights, the nature and scope of which is extremely serious and totally disproportionate to the behaviour penalised.

In December 2004 the International Ski Federation (FIS) has reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone). Consequently the FIS Panel decided on 1 March 2005 to impose an 18 month period of ineligbility on the Athlete.

In first instance the FIS Panel accepted that the Athlete did not act intentionally although he clearly acted negligently with the use of his supplements.

Analysis of the Athletes supplements showed that they were contaminated. Thereupon the Athlete had filed a criminal complaint against the importer of the nutritional supplement. This action resulted in a large amount of (contaminated) nutritional supplements being seized and confiscated.

Hereafter the Athlete appealed the FIS decision with the Court of Arbitration for Sport (CAS).

Following assessment of the evidence in this case the Panel concludes that the Athlete did less rather than more than could be expected of him to minimise the risk associated with nutritional supplements about which he was warned, in particular, those originating from this company in question.

If one therefore weighs the efforts and precautions undertaken by the Athlete in their totality, they fall just under the threshold of “no significant fault or negligence”.

In the light of the particularities of the present case and the principle of proportionality, the Panel considers that the sanction of 18 months imposed by the FIS is fair and reasonable.

Therefore on 20 July 2005 The Court of Arbitration for Sport decides that:

1.) The appeal filed by Hans Knauss on 21 March 2003 is dismissed.

2.) The award is pronounced without costs, except for the Court Office fee of CHF 500.- already paid by the Athlete and which is retained by the CAS.

3.) Each party shall bear its own costs.

CAS 2005/A/830 G. Squizzato v/ FINA
CAS 2005/A/830 S. v. FINA

• Swimming
• Doping (clostebol)
• Strict liability
• Duty of diligence
• Proportionality of the sanction

1. Under the FINA Doping Policy, an offence has been committed when it has been established that a prohibited substance was present in the athlete’s body. There is thus a legal presumption that the athlete is responsible for the mere presence of a prohibited substance. The burden of proof lies within FINA and its Member Federation to establish that an anti-doping rule violation has occurred.

2. An athlete fails to abide by his/her duty of diligence if, with a simple check, he/she could have realised that the medical product he/she was using contained a prohibited substance, the latter being indicated on the product itself both on the packaging and on the notice of use. Furthermore, it is indeed negligent for an athlete willing to compete in continental or world events to use a medical product without the advice of a doctor or, at the very least, a physiotherapist. However, if it appears that the athlete had no intention whatsoever to gain advantage towards the other competitors, his/her negligence in forgetting to check the content of the medical product can be considered as mild in comparison with an athlete that is using a doping product in order to gain such advantage. Accordingly, although it cannot be considered that the athlete bears no fault or negligence in such a case, it can be held that he/she bears no significant fault or negligence, which opens the door to a reduced sanction.

3. Substantial elements of the doctrine of proportionality have been implemented in the body of rules and regulations of many national and international sport federations by adopting the World Anti-Doping Code, which provides a mechanism for reducing or eliminating sanctions i.a. in cases of “no fault or negligence” or “no significant fault or negligence” on the part of the suspected athlete. However, the mere adoption of the WADA Code by a respective Federation does not force the conclusion that there is no other possibility for greater or lesser reduction of a sanction.

4. A mere “uncomfortable feeling” alone that a one year penalty is not the appropriate sanction cannot itself justify a reduction of the sanction. The individual circumstances of each case must always hold sway in determining any possible reduction. Nevertheless, the implementation of the principle of proportionality as given in the WADA Code closes more than ever before the door to reducing fixed sanctions. Therefore, the principle of proportionality would apply if the award were to constitute an attack on personal rights which was serious and totally disproportionate to the behaviour penalised.

In September 2004 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Athlete Gioriga Squizzato after her sample tested positive for the prohibited substance Clostebol. Consequently on 9 December the FINA Doping Panel decided to impose a 1 year period of ineligibility on the Athlete, starting on the date of the decision.

Hereafter in February 2005 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS). She requested the Panel to acquit her from the charge, or in any event, to reduce the sanction.

The Athlete argued that the violation was non intentional and acknowledged that she had used a cream to her foot as treatment for her skin condition which does not enhance her performance. On this basis, she claimed that she did not commit any fault, nor that she had been negligent.

The Panel finds that the Athlete indeed established how the prohibited substance had entered her system. However she failed to abide by her duty of diligence. With a simple check, she could have realised that the cream was containing a doping agent, as Clostebol is indicated on the product itself both on the packaging and on the notice of use. At least she could have asked her doctor, coach or any other competent person to double-check the contents of the cream bought by her mother.

As the Athlete was effectively suspended from 30 September 2004 onwards, the Panel is of the opinion that fairness requires that the sanction should not last more than one year and should therefore end on September 30, 2005. Therefore, as requested by the Athlete, the commencement of the sanction shall be September 30, 2004 and not December 9, 2004.

On 15 July 2005 the Court of Arbitration for Sport decides that:

1.) The appeal filed by the Athlete is partially upheld.

2.) The decision of the FINA is confirmed with the exception of the commencement of the sanction that shall be September 30, 2004.

(…)

Alejandro Vargas Aboy (player) was reported for violating the Anti-Doping rules.
The player refused a doping test during the Luigi Pezzoli Tournament in Bergamo, Italy. He was unaware of the consequences of this failure due to language difficulties. The player had refused the test because he took a doping substance for various physical problems he suffered. In his present state he is willing to collaborate with the ATP in exchange for reducing the sanction. The tournament doctor supplied him with a compound named testoviron, which is known for the prohibited substance testostrone.
A hearing before the full tribunal is not required.
the player's admission triggered the jurisdiction of Rule M. 5.c, for which the penal can adjust the period of ineligibility.
The final decision for this first doping offence is an ineligibility of 2 years commencing retroactively on the date of the possible infraction. During this period all points, medals, titles or prize money will be forfeited.

CCES 2005 Yvan Darsigny vs
- Canadian Centre for Ethics in Sport (CCES)
- Canadian Weightlifting Federation (CWF)
- International Weightlifting Federation (IWF)
- Governement of Canada
- World Anti-Doping Agency (WADA)

Facts
Yvan Darsigny (applicant) appeals against the decision of the Doping Appeal Tribunal of 17 April 2005. In this decision the applicant received an award of 2 years ineligibility for evading sample collection. Respondents in this case are: Canadian Centre for Ethics in Sport (CCES), the Canadian Weightlifting Federation (CWF), the International Weightlifting Federation (IWF), the Government of Canada, and the World Anti-Doping Agency WADA).

History
The Athlete consistently argued that he would be astonished to discover that he is still considered an international-level athlete given that his last international-level competition took place in 1994. The CWF declared: that it had never provided the IWF with a list of Canadian athletes who were to be designated international-level athletes.
Due to family matters the applicant didn't treat the Doping Control Officers in a kind way and refused to comply when they came for an unannounced doping test.
The athlete claims that the notification of the doping control was not handled correctly, the position of the Athlete in this respect rests on a misunderstanding of the anti-doping rule in question.
The Appeal Tribunal rejects the Appellant's arguments for exceptional circumstances.

Decision
(1) The appeal is rejected, in part;
(2) The Decision rendered on 7 April 2005 by the Doping Tribunal is maintained;
(3) The Athlete committed the anti-doping rule violation set out in Rule 7.24 of the CADP, specifically, evading sample collection;
(4) The Athlete is ineligible for a period of two years commencing on 23 January 2005;
(5) Each party shall bear its own costs and expenses incurred in the appeal.

In December 2004 the Irish Sports Council (ISC) has reported an Anti-Doping Rule violation against the Athlete IS-1541 (the Athlete) after his sample tested positive for the prohibited substance cocaine.

After notification a provisional suspension was ordered. The Athlete attended the hearing with his representation and admitted the violation.

The Panel decides to impose a 2 year period of ineligibility on the Athlete starting on the date of the notification of the violation.

The barriers to illegal anabolic steroid use / Bruce Maycock, Peter Howat. - (Drugs: Education, Prevention and Policy 12 (2005) 4; p. 317-325).
- https://doi.org/10.1080/09687630500103622

Abstract

This paper summarizes the self-reported barriers that men overcame prior to initiating illegal anabolic steroid use, and the associated weakening of social controls that restrict anabolic steroid initiation. Data was collected via participant observation of 147 anabolic steroid users and previous users, 98 in-depth interviews with 42 anabolic steroid users and 49 in-depth interviews with 22 illegal dealers. Additional data came from interviews and eight focus groups with gym instructors, personal trainers and health workers, and the monitoring of policy changes and media reports relating to anabolic steroids.

The identified barriers included, coping with potential stigma, gathering of credible information and overcoming structural and resource barriers including developing the skills required to administer the drug and gaining a supply source. As these barriers were overcome there was a reduction in the social controls that inhibit the initiation of illegal anabolic steroid use. By understanding the interaction between potential users, social controls and these barriers it may be possible to strengthen the barriers and hence delay or halt the progression to anabolic steroid use. The paper suggests several demand- and harm-reduction strategies that may assist this process.

Related case:
KNWU 2005 KNWU Decision Disciplinary Committee 2005120 T
September 5, 2005

In April 2005 the Royal Dutch Cycling Union (KNWU) has reported an anti-doping rule violation against the Person after his A and B samples for the prohibited substance testosterone with a T/E ratio above the WADA threshold.
After notification the Athlete filed a statement with medical files in his defence and he was heard for the KNWU Disciplinary Committee.

The Person explained that his high T/E ratio is caused by his exceptional low testosterone level and that he underwent further medical examinations for his condition.
The Person assumed also that the food supplements he used could have contained contaminations.

The KNWU Disciplinary Committee accepted the Person’s explanation and decided on 1 July 2005 to acquit the Person with the recommendation to apply for a TUE because of his high T/E ratio.

Hereafter in August 2005 the UCI appealed this KNWU decision for acquittal with the Court of Arbitration for Sport (CAS).
The CAS Panel concluded that the testosterone in the samples were of exogenous origin and decided to annul the KNWU decision of 1 July 2005 and to impose a 2 year period of ineligibility on the Person.

In addition CAS decided in a new proceeding in 2006 to impose a lifetime period of ineligibility on the Person because the he had committed a second anti-doping violation in 2005 .

The IAAF Arbitration Panel : The Heritage of Two Decades of Arbitration in Doping-Related Disputes / Christoph Vedder. – (International Sports Law Journal (2005) 3-4 : p. 16-23)

Content:
1.) Introduction
2.) The legal Basis
2.1.) The Formation and Composition of the Arbitration Panel
2.2.) The Independence of the Arbitration Panel
2.3.) Jurisdiction of the Arbitration Panel
2.4.) The Procedure before the Arbitration Panel
2.5.) The Effects of the Awards
3.) The Doping Offence
3.1.) The Elements of Doping
3.2.) The Burden of Proof
4.) Major Achievements
4.1.) Doping Offence
4.2.) Prohibited Substances, Food Supplements
4.3.) Endogenously Produced Substances
4.4.) Strict Liability, Burden of Proof
4.5.) Sanctions, Length of the Period of Ineligibility
4.6.) Procedural Issues
5.) At the End: an Oulook

In summer 2001, the 43rd Congress of the International Association of Athletics Federations (IAAF) during its Edmonton session decided to discontinue its Arbitration Panel and to join the arbitral dispute settlement system provided by the Court of Arbitration for Sport (CAS). However, according to a transitory provision several cases still came before the Arbitration Panel in 2002 and 2003 while the very last dispute to be decided by it was referred to the Panel as late as in 2004. Having been established in 1982, the Arbitration Panel operated since 1984 when the first list of arbitrators was composed.
Now, we are able to look back on two decades of settlement of sport-related disputes by arbitration, in particular in doping matters, within the framework of a major International Federation. In August 2003 as a next step the 44th IAAF Congress in Paris amended the IAAF’s constitutional rules on doping to bring them into line with the WADA Code. The overall result was a streamlining of the IAAF’s anti-doping policy both in substance and procedure, in accordance with the general trend of international and inter-sports harmonisation.

The Ad Hoc Division of the Court of Arbitration for Sport at the Athens 2004 Olympic Games – An Overview / Domenico Di Pietro. – (International Sports Law Journal (2005) 3-4 : p. 23-27)

Content:
1.) Introduction

2.) The Cases:
- CAS OG 04/001,
Russian Olympic Committee v. Fédération Equestre Internationale (FEI)
- CAS OG 04/003,
Torri Edwards v. International Association of Athletics Federations (IAAF) and USA Track and Field (USATF)
- CAS OG 04/004,
David Munyasia v. International Olympic Committee (IOC)
- CAS OG 04/005,
David Calder and Christopher Jarvis v. Federation Internationale des Societes d’Aviron (FISA)
- CAS OG 04/006,
Australian Olympic Committee (“AOC”)) v. International Olympic Committee (“IOC”)and International Canoe Federation (“ICF”)
- CAS OG 04/007,
Comite’ National Olympique et Sportif Francais (CNOF), British Olympic Association (BOA) and United States Olympic Committee (USOC) v Federation Equestre Internationale (FEI) and National Olympic Committee for Germany
- CAS OG 04/008,
Comité National Olympique et Sportif Français (“CNOSF”) v. International Canoe Federation (“ICF”) and International Olympic Committee (“IOC”)
- CAS OG 04/009,
Hellenic Olympic Committee (“HOC”) and Nikolaos Kaklamanakis v. International Sailing Federation (“ISAF”)
- CAS OG 04/010,
Mr Yang Tae Young v International Gymnastics Federation (FIG) and United States Olympic Committee (USOC)

3.) Conclusions

The cases administered by the ad hoc division of CAS at the Athens 2004 Olympic Games showed an increase in the challenges to refereeing decisions which were either wrong or perceived to be unfair. Even though only a few complaints were eventually formalised into actual CAS proceedings many more were about to reach that stage.

A regrettable element of the Olympic Games was obviously the presence of doping violations. The stringent regulations aimed at eradicating this terrible plague as well as the diligent enforcement of such regulations by CAS are to be praised and supported. It has been observed in this respect that, perhaps, the fight against doping should differentiate between sanctions to be imposed on deliberate cheating and sanctions to be imposed where the violation is the result of mere and genuine negligence. The objective difficulty in ascertaining the nature of the offence that such differentiation would be likely to give rise to is however a problem that may stop any future policy in that direction at least as long as doping remains such a malicious and unfortunately widespread enemy of sport and health.

Despite the presence of such difficult issues that the Olympic Movement will have to tackle in the future, one of the many positive notes in Athens, together with the excellent organisation of the Games, was that - once again since the creation of the ad hoc division - the Court of Arbitration for Sport has not failed to provide the Olympic Games with highly professional and perfectly organised service for the fast and effective protection of the rule of law in sport disputes.

Hormonen in importvlees : Een evaluatie van recente gegevens over gehalten aan van nature voorkomende hormonen / P.R. Kootstra, H.J. van Rossum, P.W. Zoontjes,  P.L.W.J. Schwillens, K.L. Wubs, H.A. Herbold, R.W. Stephany, S.S. Sterk en L.A. van Ginkel. - Bilthoven : Rijksinstituut voor Volksgezondheid en Milieu (RIVM), 2004. - (RIVM Rapport 310302002/2004).

Samenvatting

Consumptie van vlees, geimporteerd uit Zuid-Amerika, met name Argentinie en Brazilie, leidt niet tot inname van lichaamsvreemde hormonen. Bovendien zijn er geen aanwijzingen voor inname van verhoogde hoeveelheden lichaamseigen hormonen. Onderzoek naar het illegaal gebruik van groeibevorderende stoffen vindt binnen de Europese Unie plaats in het kader van Nationale residu controleprogramma's, uitgevoerd in het kader van Europese regelgeving. Zulk onderzoek vindt plaats zowel gedurende de boerderijfase als ten tijde van de slacht. Veelal richt dit onderzoek zich op excreta zoals urine of mest, of op orgaanvlees. Bij import van buiten de Europese Unie is als regel uitsluitend het voor consumptie bedoelde spiervlees beschikbaar. Het systematisch onderzoek van dit materiaal heeft tot op heden slechts zeer beperkt plaatsgevonden waardoor gegevens over de blootstelling van de consument nauwelijks beschikbaar zijn. Dit rapport beschrijft de resultaten van onderzoek van ca. 300 monsters rund- en varkensvlees op lichaamseigen en lichaamsvreemde hormonen. Geen van de lichaamsvreemde hormonen waarop onderzoek is verricht werd aangetroffen. In zes monsters varkensvlees werden nortestosteron en boldenon aangetroffen. De aanwezigheid van deze hormonen betekent dat ook vlees van beren (niet gecastreerde mannelijke varkens) wordt geexporteerd. In een monster rundvlees overschreed het gehalte aan 17beta-oestradiol de voorlopige grenswaarde van 0,1 microg/kg.

Abstract

Consumption of meat imported from South America, mainly Argentina and Brazil, does not result in the intake of exogenous hormones. In addition, there are no indications for the intake of elevated amounts of endogenous (natural) hormones. Testing for the illegal use of growth promoting compounds within the European Union is conducted within the framework of national residue control programmes, based on European legislation. Such testing takes place "on farm" and after slaughter. Most of the tests are conducted on excreta like urine and manure and on organ tissues. However, in case of import only the muscle tissue intended for consumption is available. Systematic testing of this material, however, has been very limited. Consequently limited information on the actual intake by consumers is available. This report describes the results of the analyses of approximately 300 samples of bovine and porcine meat for the presence of xenobiotic and endogenous hormones. None of the xenobiotic hormones analyzed for was detected in these analyses. In six samples of pork meat nortestosterone and boldenone were detected. The presence of these hormones indicates that boar meat was exported too. In one sample the level of 17beta-oestradiol exceeded the provisional reference value of 0.1 microg/kg.