Related cases:

• CAS 2005/A/936 UCI vs Erwin Bakker & KNWI
  April 20, 2006
• CAS 2005/A/969 Erwin Bakker vs KNWU & UCI
  Mai 5, 2006
• ECHR 7198/07 Erwin Bakker vs Switzerland
  September 26, 2019

In April 2005 the Koninklijke Nederlandsche Wielren Unie (KNWU), the Royal Dutch Cycling Federation, has reported an anti-doping rule violation against the cyclist Erwin Bakker after his A and B samples – provided during the Mountain Bike Cycling Race Vuelta Internacional a Valladolid 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 issued a decision that acquitted 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 upheld the UCI appeal, annulled the decision issued by the KNWU, 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 and declared the Athlete ineligible for competition for two years commencing on 2 February 2006 (CAS 2005/A/936).

Already involved in the ADRV proceedings – reported in april 2005 – the Athlete participated in Canada in the Mount-Sainte-Anne contest in June 2005.
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).

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 ADRV committed in Canada.

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

Considering the previous CAS decision of 20 April 2006 (CAS 2005/A/936) as a first ADRV the CAS Panel decided on 5 May 2006 (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.

Hereafter in April 2010 the Athlete appealed the CAS decision of 5 May 2006 (CAS 2005/A/969) with the Swiss Federal Court.

The Athlete argued that in the case CAS 2005/A/936 upon receipt of the results of the A-sample analysis he demanded the analysis of a B-sample. Once the latter was done and assessed he would have received only the counter analysis of the B-sample two pages in length, yet not the laboratory’s report which contained more than 80 pages. Neither would he have been advised of the possibility to request the complete analysis report of the B-sample.

The Athlete further argued that his counsel did submit during the February 2006 hearing in front of the CAS that he should be allowed to review the full laboratory’s report; however neither the CAS nor the UCI responded to the request which “very likely was not even mentioned in the record”. Only through an e-mail of 29 January 2010 would he have received the full report concerning the B-sample. At that point in time he would have learned that the A and B analysis had been conducted at least in parts by the same lab technicians.

According to the applicable rules of the International Standard for Laboratories this is not allowed. Thus a breach of the rules took place, which according to the Athlete should have led to an acquittal. An acquittal in CAS 2005/A/936 would lead in turn “inevitably to a milder sanction in the CAS case 2005/A/969 to be reopened”, namely only to a two years ban and not to a ban for life.

Considering the Athlete’s arguments the Swiss Federal Court decides:

1.) The request for revision is rejected to the extent that the matter is capable of revision.

2.) The judicial costs set at CHF 2’000.- shall be paid by the Athlete.

3.) The Athlete shall pay to the Respondent CHF 2’500.- for the federal proceedings.

4.) This judgment shall be notified in writing to the parties and to the court of Arbitration for Sport (CAS).

Related case:
ST 2017_05 DFSNZ vs Gareth Dawson
December 15, 2017

Drug Free Sport New Zealand (DFSNZ) has reported an anti-doping rule violation against the Respondent Gareth Dawson after his A and B samples tested positive for the prohibited substance tamoxifen. After notification a provisional suspension was ordered. Respondent filed a statement in his defence and was heard for the Tribunal.

Respondent admitted the violation. He developed a medical condition in 2011, which was sore and annoying when competing, and went to a doctor in Timaru who diagnosed the condition but didn’t prescribe treatment. The condition went away for 18 months then returned. In 2013 Mr Dawson researched the condition online, saw references to tamoxifen as a treatment and ordered tamoxifen tablets from an online pharmacy but didn’t receive them as they were intercepted in the mail by NZ Customs. When the tablets didn’t arrive he consulted a doctor in Invercargill where he was now living. He requested a “repeat prescription” of tamoxifen and was prescribed tamoxifen, which he later took. He said this was the source of the positive test.

The Tribunal was satisfied how the prohibited substance entered the Athlete’s body, that he didn’t intend to enhance his sports performance or mask the use of a performance enhancing substance and that it was obtained by prescription and taken to deal with a medical condition.
Therefore the Sports Tribunal of New Zealand decides to impose a 12 month period of ineligibility on the Respondent starting on the date of the provisional suspension, i.e. on 15 May 2014.

Gerechtshof Arnhem-Leeuwarden
Sector civiel recht
June 25, 2013
200.015.508

ECLI:NL:GHARL:2013:CA3542

Related cases:

• CAS 2008_A_1612 Michael Rasmussen vs UCI & FMC
  January 22, 2009
• Dutch District Court 2008 Michael Rasmussen vs RABO Wielerploegen
  July 2, 2008
• Dutch Court of Appeal 2012 Michael Rasmussen vs RABO Wielerploegen
  June 19, 2012

Facts
Cyclist X, appeals against the district court decision dated July 7, 2008, about his dismissal from the RABO Wielerploegen (RABO team).

History
The cyclist didn't provide correctly his whereabouts data which is required as a member of the designated testing pool. Claiming he was in Mexico an Italian television commentator saw him in the Dolomites. Rabo viewed this as evading doping controls and withdrew him from the race (Tour de France) and later terminated his contract. The dismissal was not on the correct legal grounds, the time between the dismissal and reason for immediate dismissal was to long.
However the RABO team has evidence which rejects all grievances and will cancel the decision of the district court.

Decision
1. The RABO team only has to pay partly some compensation costs.
2. Cyclist X has to refund the trial costs and his remaining wages he had received inclusive a bonus after his immediate dismissal.

Gerechtshof Amsterdam
Sector civiel recht
June 19, 2012
200.015.508

ECLI:NL:GHAMS:2012:BW8595

Related cases:

• CAS 2008_A_1612 Michael Rasmussen vs UCI & FMC
  January 22, 2009
• Dutch District Court 2008 Michael Rasmussen vs RABO Wielerploegen
  July 4, 2012
• Dutch Court of Appeal 2013 Michael Rasmussen vs RABO Wielerploegen
  June 25, 2013

Facts
Cyclist X, appeals against the district court decision dated July 7, 2008, about his dismissal from the RABO Wielerploegen (RABO team).

History
The cyclist didn't provide correctly his whereabouts data which is required as a member of the designated testing pool. Claiming he was in Mexico an Italian television commentator saw him in the Dolomites. Rabo viewed this as evading doping controls and withdrew him from the race (Tour de France) and later terminated his contract. The dismissal was not on the correct legal grounds, the time between the dismissal and reason for immediate dismissal was to long.
However the RABO team has offered evidence which will reject all grievances and will cancel the decision of the district court.

Decision
1. The immediate dismissal was correct because of the wrong whereabout data of cyclist X.
2. The RABO team can provide witnesses in this case.
3. The hearing will be held on July 17, 2012.

Mr. Igor Razornonov is an Ukrainian athlete competing in the men’s 105kg Weightlifting event at the Beijing 2008 Olympic Games.

On 22 August 2002 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after his sample tested positive for the prohibited substance nandrolone.
After notification the Athlete was heard for the IOC Disciplinary Commission.

The Ukrainian delegation apologised for the situation and explained to the Disciplinary Commission that the Athlete had injuries and had undergone surgery for his knee and for his elbow on two occasions, approximately 6 months ago and one and a half year ago. The surgery occurred in a clinic and was not performed by sports doctors. The Delegation indicated that the use of medication to treat the Athlete may explain the presence of the prohibited substance in the Athlete’s body and that the NOC of Ukraine had set up a special commission to investigate the circumstances of the case.

The IOC Medical Director stated that it was unlikely that a medical treatment would have led to the presence of nandrolone in the Athlete’s body. In any case, no Therapeutic Use Exemption had been received for this Athlete.

The Disciplinary Commission unanimously concluded that the Athlete had committed an anti-doping rule violation pursuant to Article 2.1 of the Rules in that there was the presence of the prohibited substance nandrolone in his body, above the reporting threshold of 2.9 ng/ml.

Therefore the IOC Disciplinary Commission decides that the Athlete Igor Razoronov:

1.) is disqualified from the Mens’ 105kg Weightlifting event, where he had placed sixth;
2.) is excluded from the Games of the XXIX Olympiad in Beijing in 2008;
3.) shall have his diploma in the above-noted event withdrawn;
4.) shall have his Olympic identity and accreditation card immediately withdrawn and cancelled.
5.) The International Weightlifting Federation is requested to modify the results of the abovementioned event accordingly and to consider any further action within its own competence.
6.) The NOC of Ukraine is ordered to return to the IOC, as soon as possible, the diploma awarded to the Athlete in relation to the above-noted event.
7.) The NOC of Ukraine and BOCOG shall ensure full implementation of this decision.
8.) The NOC of Ukraine is requested to inform the IOC and the International Weightlifting Federation of the results of the investigation of the special commission set up by the NOC of Ukraine.
9.) This decision shall enter into force immediately.

Rechtbank Utrecht
Sector civiel recht
July 2, 2008
557845 UC EXPL 08-1098 JS

ECLI:NL:RBUTR:2008:BD6001

Related cases:

• CAS 2008_A_1612 Michael Rasmussen vs UCI & FMC
  January 22, 2009
• Dutch Court of Appeal 2012 Michael Rasmussen vs RABO Wielerploegen
  June 19, 2012
• Dutch Court of Appeal 2013 Michael Rasmussen vs RABO Wielerploegen
  June 25, 2013

Facts
Michael Rasmussen, the cyclist, appeals against his immediate dismissal from the RABO Wielerploegen (RABO team).

History
The cyclist didn't provide correctly his whereabouts data which is required as a member of the designated testing pool. Claiming he was in Mexico an Italian television commentator saw him in the Dolomites. RABO viewed this as evading doping controls and withdrew him from the race (Tour de France) and later terminated his contract. The immediate dismissal was not on the correct legal grounds, the time between the dismissal and reason for immediate dismissal was to long.

Decision
1. The immediate dismissal was illegal
2. The RABO team has to refund his remaining salary, compensation costs and immaterial damage. Also the interest over these costs has to be paid.

Facts
The French Basketball Federation (Fédération Française de Basket-Ball, FFBB) charges respondent M39 for a violation of the Anti-Doping Rules. During a match on December 14, 2013, a sample was taken for doping tests 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 had used cannabis a week before the match but denies wanting to improve athletic performance.
The panel acknowledges that the cannabis wasn't use to improve athletic performance, but it is strictly prohibited to use it.

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

Facts
The French Rugby Federation (Fédération Française de Rugby, FFR) charges respondent M38 for a violation of the Anti-Doping Rules. During a match on December 8, 2013, a sample was taken for doping control purposes. Analysis of the sample showed the presence of tuaminoheptane which is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list. It is regarded as a specified substance.

History
The respondent had used medication a few days before the match containing tuaminoheptane. He claims using it for treatment against a nose obstruction from which he suffers since since childhood and has turned chronic. He has medical reports and a certificate to prove his condition. He wasn't informed by his physician about the prohibited substance nor did he read the information of the medication.
The panel doesn't see any documentation about the duration of the treatment which makes the medical justification unestablished.

Decision
1. The sanction is a period of ineligibility of three months in which respondent can't take part in competition or manifestations organized or authorized by the FFR.
2. The period of ineligibility will be reduced by the period: already served in voluntary suspension, the period already served by the decision of the disciplinary committee of the FFR dated February 11, 2014.
3. The decision starts on the date of notification.
4. The decision will be published and sent to the parties involved.

Facts
The French Football Federation (Fédération Française de Football, FFF) charges respondent M34 for a violation of the Anti-Doping Rules. During a match on November 16, 2013, a sample was provided for doping test purposes. 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. It is regarded as a specified substance.

History
The respondent had admitted during the hearing of the disciplinary committee he uses cannabis occasionally. However he didn't provide any information how the substance had entered his body.

Decision
1. The sanction is a period of ineligibility of 9 months in which respondent can't take part in competition or manifestations organized or authorized by the FFF.
2. The period of ineligibility will be reduced by: the period already served in voluntary suspension, the period already served by the decision (six months period of ineligibility) of the disciplinary committee of the FFF dated February 12, 2014.
3. The decision of February 12, 2014, will be modified.
4. The decision starts on the date of notification.
5. The decision will be published and sent to the parties involved.

Facts
The Sophie Tinklin appeals against the decision UK Anti-Doping committee dated May 28, 2014. The sanction was a period of ineligibility of four years.

History
On July 12, 2012 the police executed a search warrant at respondents house address. They got hold of the prohibited substances, documentation/papers a laptop linked to the ordering of the prohibited substances and the cellular phone of the second respondent. The laptop and cellular phone contained information about suppliers and clients of the prohibited substances. Sophie Tinklin was taking part in the distribution of the prohibited substances together with her father Philip Tinklin who had a leading role. Sophie Tinklin practices boxing (on a high level) and is a member of the Welsh Amateur Boxing Association (WABA).
The defence claims:
1. Presented facts where based on "an unsigned witness statement to the Anti-Doping Tribunal".
2.) The information about Money Laundering was based on hearsay and was otherwise unsatisfactory and incomplete;
3. There was no forensic evidence to support the alleged involvement of the Appellant;
4. The material on which UKAD relied was "merely an unsubstantiated biased opinion as a consequence of a frustrated criminal prosecution against the Appellant". It is said that this constituted a "vexatious attempt to violate the principles of natural justice"
5. Essentially, as we noted under Ground 1 above, the complaint is that there was no adequate evidence to support the finding that the Appellant was aiding and abetting or complicit in the dissemination of prohibited substances.
The penal doesn't support the claims.

Decision
The appeal is dismissed.