The Respondent, Adham Sbeih, is an elite-level athlete in the sport of cycling. In 2003, he became the United States National Champion in the 4-kilometer pursuit track event. On August 26, 2003, Respondent provided an urine sample at the USA Cycling Elite Track Nationals in Trexeltown, Pa. at the request of USADA. The A and B sample were tested positive for r-EPO.
Respondent contended at the hearing that there was an improper interpretation of the electropherogram related to his sample and that therefore there was not sufficient evidence of a doping offense for r-EPO, if he is found to have committed a doping offense, the penalty should be reduced from two years to 11 months.
Decision and award:
- The Panel finds that there is insufficient evidence from either side as to any theory on how the r-EPO got into Sbeih’s body.
- The minimum suspension for a first offender of two (2) years to take place effective from August 26, 2003, is imposed on Respondent pursuant to UCI Regulations, Art. 130.
- All competitive results that occurred on or after August 26, 2003, are cancelled.

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

Dissenting Opinion Christiopher L. Campbell

The Respondent, Floyd Landis is an elite cyclist with many cycling
accomplishments during his career. In 2006, he was first overall in the Tour of Georgia, as well as Paris Nice, and Tour of California. The Athlete holds a US license and in signing the license the Athlete agrees that the sole jurisdiction for resolving any dispute that arises shall be in the courts of domicile of the UCI. The UCI Cycling Regulations provide that adjudication of matters shall be handled by the national federation of the athlete involved.

On 25 July 2006, the Laboratoire National de Dépistage du Dopage (LNDD) reported to the UCI that there had been an adverse analytical finding with respect to the Respondent’s “A” sample, consistent with the use of Testosterone or one of its precursors. On 5 August 2006, the LNDD subsequently reported to the UCI that there had been a confirmation AAF on the Athlete’s “B” sample. The results of this second test were also consistent with the use of Testosterone or one of its precursors.

1. From the beginning, the Laboratoire National de Dépistage et du Dopage (“LNDD”) has not been trustworthy. In this case, at every stage of testing it failed to comply with the procedures and methods for testing required by the International Standards for Laboratories, Version 4.0, August 2004 (“ISL”) under the World Anti-Doping Code, 2003 (“WADA Code”). It also failed to abide by its legal and ethical obligations under the WADA Code. On the facts of this case, the LNDD should not be entrusted with Mr. Landis’ career.
2. Mr. Landis is only required to prove the facts he alleges in this case by a mere balance of the probabilities. In many instances, Mr. Landis sustained his burden of proof beyond a reasonable doubt. The documents supplied by LNDD are so filled with errors that they do not support an Adverse Analytical Finding. Mr. Landis should be found innocent.

LEGAL ANALYSIS
- Safeguarding The Interests Of The Athletes
- LNDD Submitted Improper Evidence of a Doping Violation
- WADA’S “Code of Ethics” for Laboratory Directors has been Interpreted and Enforced as an Unnecessary Obstacle to the Search for Truth
- LNDD Failed to Follow ISL Procedure testing for three ions in the T/E Ratio test
- LNDD Did Not Have A Proper Chain of Custody for the Samples of Mr. Landis
- LNDD’s Failure to Properly Record Forensic Corrections Makes the
Documents Unreliable
- Additional Potentially Fraudulent Documents
- LNDD Did Not Abide by its Legal and Ethical Obligation of Confidentiality
- The LNDD Failed to Provide Complete Documentation of the Adverse Analytical Findings for the Additional Tests done on the B Samples from Stages 11,15,19 and 20
- The Document Package Supplied in Support of an Adverse Analytical Finding Does Not Comport with Known Science
- Even Using LNDD’s Questionable Numbers Landis’ Sample Would have been Reported Negative by a Reputable Laboratory

CONCLUSION
As this case demonstrates, even when an athlete proves there are serious errors in a laboratory’s document package that refute an Adverse Analytical Finding, it will be extremely difficult for an athlete to prevail in these types of proceedings. Therefore, it is imperative that WADA Accredited Laboratories abide by the highest scientific standards.
These doping adjudications can cause substantial harm to a human being financially, physically and emotionally. It can destroy families. If, from time to time, WADA's mission obligates it to inflict such harm, it should be obligated to get it right- all of it. As athletes have strict liability rules, the laboratories should be held strictly liable for their failure to abide by the rules and sound scientific practice.

Because everyone assumes an athlete who is alleged to have tested positive is guilty, it is not fashionable to argue that laboratories should comply with strict rules. However, if you are going to hold athletes strictly liable with virtually no possibility of overcoming a reported alleged positive test even in the face of substantial and numerous laboratory errors, fairness and human decency dictates that strict rules be applied to laboratories as s well. To do otherwise does not "safeguard the interest of athletes."

WADA should be writing rules that mandate the highest scientific standards rather than writing rules for a race to the bottom of scientific reliability so convictions can be easily obtained, as this case demonstrates. Given the plethora of laboratory errors in this case, there was certainly no reliable scientific evidence introduced to find that Mr. Landis committed a doping offence.

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.

The Respondent, Floyd Landis is an elite cyclist with many cycling
accomplishments during his career. In 2006, he was first overall in the Tour of Georgia, as well as Paris Nice, and Tour of California. The Athlete holds a US license and in signing the license the Athlete agrees that the sole jurisdiction for resolving any dispute that arises shall be in the courts of domicile of the UCI.
The UCI Cycling Regulations provide that adjudication of matters shall be handled by the national federation of the athlete involved.

On 25 July 2006, the Laboratoire National de Dépistage du Dopage (LNDD) reported to the UCI that there had been an adverse analytical finding with respect to the Respondent’s “A” sample, consistent with the use of Testosterone or one of its precursors. On 5 August 2006, the LNDD subsequently reported to the UCI that there had been a confirmation AAF on the Athlete’s “B” sample. The results of this second test were also consistent with the use of Testosterone or one of its precursors.

There are in effect two allegations in the Lab report which are mirrored in the charge by USADA. The first allegation is that the Athlete had exogenous testosterone in his sample, a Prohibited Substance as provided for in UCI Regulations in Article 15.6.3. This allegation is based upon the GC/C/IRMS analysis of the Lab. The second allegation is that the T/E ratio has been violated as provided for in UCI Regulations in Article 15.1.3. This allegation is based upon the GC/MS analysis by the Lab.

On 19 September 2006 USADA issued the charging letter (portions of which were quoted above) in which it seeks an order of this Panel that a first doping violation has occurred pursuant to the USADA Protocol, the UCI Anti-Doping Rules, and the United States Olympic Committee (the “USOC”) Anti-Doping Policies. It seeks the following sanctions by way of orders from this Panel:
- A two (2) year period of ineligibility as described by the WADA Code, beginning on the day you accept this sanction, fail to contest this sanction, or the date of the hearing decision in this matter; and
- Disqualification of all competitive results obtained on or subsequent to July 20, 2006 the date your sample was collected, including forfeiture of any medals, points and prizes; and,
- Ineligibility for a period of two (2) years beginning on the day you accept this sanction, fail to contest this sanction or the date of the hearing decision in this matter, from participating or coaching in U.S. Olympic, Pan American Games or Paralympics Games Trials, being a member of any U.S. Olympic, Pan American Games or Paralympics Team and having access to the training facilities of the USOC including, but not limited to benefits, grants, awards or employment.

In response to some of the above motions, the Panel issued a total of 3 Interlocutory Awards.
The first Interlocutory Award was issued by way of majority decision on 17 March 2007. Dissenting in part and concurring in part was Arbitrator Chris Campbell. Mr. Campbell’s dissent was also issued on 17 March 2007. This initial Award was in response to the Respondent’s October 23, 2006 and January 22, 2007 request for documents. USADA provided written explanations regarding the Respondent’s request on 7 February 2007 and the Respondent filed a Response Brief on 13 February 2007. The Response Brief also raised a new issue regarding depositions. Oral arguments on these issues were heard at the Discovery Hearings on 22 & 23 February. In conclusion the first Interlocutory Award dealt with two issues. The Testing of Additional Samples and the Respondent’s Request for Deposition.
In its ruling the majority of the Panel agreed USADA could perform additional tests on the remaining “B” samples, but held that they could not result in an adverse analytical finding. The majority also ordered that any additional testing of the Respondent’s Samples be carried out by USADA and that the Athlete have the same rights of attendance and participation as were extended to him at the time of confirmation analysis of the “B” sample. The majority rejected the Respondent’s request for depositions.

The second Interlocutory Award was issued by the Panel on 8 May 2007 with reasons to follow. This award was made by way of majority decision, dissenting was Arbitrator Chris Campbell.
The third and final Interlocutory Award was also issued on 8 May 2007, with reasons to follow. The purpose of this award was to deal with the Respondent’s Motion for Continuance and Motion concerning the Second Request for Production of Documents. The motion concerning the second request was in furtherance to the materials provided by the parties prior to the discovery hearings of 22 and 23 February 2007 and the oral submissions of the parties
during the discovery hearing.

The North American Court of Arbitration for Sport Panel, after having carefully read, reviewed and considered all of the evidence and arguments presented by the Claimant the United States Anti- Doping Agency on the one hand, and the evidence and arguments of the Respondent, Floyd Landis, on the other hand including, but not limited to, the pre-trial briefs and arguments, the pre-trial motions and related arguments and rulings, the testimony of the witnesses, with exhibits, the opening and closing statements of counsel introduced during the arbitration hearing held from May 14-23, 2007 and the Proposed Findings of Fact and Conclusions of Law filed by both parties on the 28 June 2007, hereby makes the following rulings and awards in the case of USADA v. Landis:

1. The charge of an elevated T/E ratio from the sample was not
established in accordance with the WADA International Standard for Laboratories and is hereby dismissed.
2. The charge of exogenous testosterone being found in the
sample by the Carbon Isotope Ratio analysis is established in
accordance with the UCI Anti-Doping Regulations.
3. An Anti-Doping Rule Violation is found to have been
established under Article 15.1. This is the Athlete’s first violation.
4. Pursuant to UCI Article 261 a period of two years’ ineligibility
is imposed by this award.
5. The violation of the UCI Rules having occurred as a result of
an In-Competition test will result under UCI Articles 256 and
257.2 in the automatic disqualification of the Athlete’s results
in the 2006 Tour de France and forfeiture of any medals, points or prizes.
6. Under UCI Rules 257.2 and 275 the normal period of Ineligibility would commence with the date of this decision, but the Rule also provides that where any period during which provisional measures were imposed or voluntarily accepted by the athlete shall be credited against the total period of Ineligibility to be served. Furthermore, where required by fairness, the hearing body imposing the sanction may start the period of Ineligibility at an earlier date commencing as early as the date of the anti-doping violation. In this case the Athlete filed a declaration of voluntary non competition as of 30 January 2007. Therefore, the period of Ineligibility will begin on that date and continue until 29 January 2009.
7. The submission that the Athlete voluntarily accepted a suspension at an earlier date the 5th of August 2006 being the day on which he was fired by his cycling team is rejected.

Respondent was tested during competing in The Point Premium Root Beer International Cycling Classic, on July 26, 2007. The A sample as positive on September 20, 2006. The B sample was tested on October 3 and declared negative.
The Panel agrees with the Respondent's argument that proof of use without positive Lab results, i.e. a "non-analytical positive" such as we have here, is more difficult to prove. The Panel is acutely aware of the seriousness of the allegation which is being made and the
burden of proof which must be met. The Panel is comfortably satisfied that the totality of the evidence in this case clearly establish that Respondent has committed an anti-doping rule violation.

Findings and decision: Respondent shall be ineligible to compete for a perlod of two years, under the UCI ADR, beginning on the date of this decision, December 1, 2008. Mr. Leogrande shall be eligible to compete again on December 1, 2010. Results obtained during The Point Premium Root Beer International Cycling Classic and all subsequent results he obtained through the date of this decision. December 1, 2008, shall be disqualified, under the UCI ADR.

Respondent failed to submit to sample collection as required, during cyclocross World Cup event in Koksijde, Belgium on November 29, 2008.
Respondent's claims compelling justifïcation. Due to flu-like symptoms, a concussion and other injuries forced him to abandon the event, unable to attend the sample gathering.
Decision and award: Respondent had not committed an anti-doping violation under the UCI rules. Respondent was able to demonstrate a compelling justification for his failure to submit sample collection at the event.

Respondent. David Clinger, is a 32 year old elite cyclist who provided USADA urine specimen on July 30, 2009, after placing second in the Men's Road Race at the USA Elite Road Nationals in Bend, Oregon. Respondent's urine sample tested positive (A and B sample) for synthetic testosterone, an anabolic agent, and modafinil, a stimulant.

Respondent contends that his Positive Test is the result of his use of Modafinil and Testosterone, which he contends was prescribed by his physician prior to his Positive Test.
Respondent submitted two therapeutic use exemption (TUE) applications for the use of Testosterone to USADA after his Positive Test, the first of which he submitted on September 2. 2009, and which was returned to him by USADA as incomplete on September 9, 2009. and the second of which he submitted on September 17, 2009 and which the USADA TUE-Committee denied on September 23, 2009 because medical records provided did not meet the criteria set forth in the WADA International Standard for TUEs. Respondent was provisionally suspended effective September 3, 2009, after a telephonic hearing before a panel of arbitrators of the American Arbitration Association.

Respondent has stipulated to the essential element of an Anti-Doping Rule Violation: the Prohibited Substances were present in his bodily specimen. Respondent's arguments with respect to the
circumstances under which he took the Prohibited Substances do not meet the criteria of the applicable rules for exceptional circumstances. as required in order to reduce or eliminate the period of Ineligibility:
- Respondent did establish how the Prohibited Substances entered his system: he took them under the care of a physician.
- Based on the definitions in the applicable rules. Respondent was unable to establish that he bore no fault or negligence or no significant fault or negligence in relationship to the anti-doping rule violation: Respondent was aware of the rules against taking Prohibited Substances. he knew about the TUE process, he had previously requested thal his physician complete similar fomis to those required in the current TUE process, he did not ask his physicians to complete the TUE
process before taking the Prohibited Substances.
- Though Respondent argues this was a "first aid situation," that would not be a valid rationale for disregarding the TUE process. And even if a "first aid situation" were some kind of exception, this was not an emergency/”First aid situation." as Respondent took the
Testosterone every 2 weeks for 3 months after it was prescribed. He had plenty of time then to apply for a TUE. Respondent deliberately disregarded the rules, of which he was aware, al least with respect to the Testosterone.
- Nor did Respondent exercise any level of caution, and certainly not utmost caution, as required to establish exceptional circumstances. He knew that the Testosterone
was a Prohibited Substance in direct contradiction of the applicable rules. He nevertheless continued to take it.
- With respect to the Modafinil. Respondent exercised no caution either. He did not inquire about the ingredients in the medications he was being prescribed or consult the list of Prohibited Substances with respect to the Resperdol prescription.

USADA further argued that there are "aggravating circumstances" in this case. such that the panel should impose a period of Ineligibility of 4 years on the Respondent. Mr. Clinger admitted the anti-doping rule violation from the outset of this case. He never denied taking the Prohibited Substances, but rather claimed that he took the Prohibited Substances under adverse circumstances that he believed consisted of exceptional circumstances.
Thus, the panel does not address whether the facts of this case consist of aggravating circumstances, but rather find that the Respondent can avoid the application of this provision based on his admission of the anti-doping rule violation.

The Arbitrators therefore rule as follows:
- Mr. Clinger shall be ineligible to compete for a period of two years, under the UCI ADR, beginning on the date of his provisional suspension, September 3,2009. Mr. Clinger shall be eligible to compete again on September 2, 2011.
- Mr. Clinger's competition results between July 30, 2009 and September 3, 2009 shall be disqualified.

Preliminary Award Regarding Provisional Suspension

Respondent, David Clinger, is a 32 year old elite cyclist who provided urine sample on July 30, 2009, after placing second in the Men’s Road Race at the USA Elite Road Nationals in Bend, Oregon.
The UCLA laboratory reported an Adverse Analytical Finding on Mr. Clinger's A Sample collected in competition on July 30, for two Prohibited Substances. In accordance with Article 7.5.1 of the Code, USADA is required in such circumstances to impose a provisional suspension promptly after review whether an applicable therapeutic use exemption has been granted or there is any apparent departure from the standards applied to laboratories.

The sole issue for the Panel to determine is whether USADA's decision that a provisional suspension should be imposed shall be upheld, based on whether probable cause exists for USADA to proceed with a charge of an anti-doping rule violation against Mr. Clinger. To establish probable cause, in accordance with Article 7.5.1 of the Code, it is not necessary for any B Sample analysis to have been completed.

The Panel, being duly advised, hereby finds:
- USADA complied with the review and notification requirements of the Code and by supplying Mr. Clinger, prior to the Provisional Hearing, on August 30,2009 with any and all laboratory documentation in the possession of USADA for the Urine sample.
- USADA has met its burden of showing that probable cause exists for USADA to proceed with a charge of an anti-doping rule violation against Mr. Clinger. The Panel therefore upholds USADA’s decision to impose an provisional suspension against Mr. Clinger.
- The provisional suspension shall Mr. Clinger ineligible to participate in any “Competition or Event”.
- The Provisional Suspension shall be in effect until the final hearing has been held and an award issued by the Panel.
- Mr. Clinger shall be entitled to have his case heard pursuant to the Expedited Track set forth in Section 13 of the Protocol, if he submits to the Panel a written request for such expedited treatment within three (3) business days from September 3, 2009.

Related case:

CAS 2010_A_2107 Flavia Oliveira vs USAD
December 6, 2010

In September 2009 the United States Anti-Doping Agency (USADA) reported an anti-doping rule violation against the cyclist Flavia Oliveira after her sample tested positive for the prohibited substance Oxilofrine (Methylsynephrine).

The Athlete admitted the violation and denied the intentional use of the substance. She argued that she was unaware that the supplement Hyperdrive 3.0+ contained a prohibited substance. Because she acted with a low degree of fault she requested for a reduced sanction.

The Sole Arbitrator accepts that the anti-doping rule violation was not intentional and rules that there were insufficient grounds for a reduced sanction.

Therefore the American Arbitration Association (AAA) decided on 6 April 2010 to impose a 2 year period of ineligibility on the Athlete, staring on the date of the sample collection, i.e. on 19 June 2009.

Award and Decision of the Arbitrators & Dissenting Opinion

Christopher L. Campbell, concurring in part and dissenting in part
October 16, 2003

The Respondent, Amber Neben, is a 28 old professional cyclist and a member of the T-Mobile Women’s Cycling Team, a trade team owned by USA Cycling and sanctioned by the international federation for the sport of cycling, Union Cycliste International (UCI).
The Respondent is subject to testing by USADA and UCI.
Respondent has been tested a number of times and all results have been negative. She tested negative in a test nine days before her positive test and had two negative tests three and four days after her positive test.

On May 31, 2003, during the Coupe du Monde Montreal, Respondent provided a urine sample at the request of UCI. On June 4, 2003, the laboratory screening test performed from the A sample indicated the presence of an anabolic steroid. The A confirmation test was performed on June 30, 2003, and it revealed the presence of 19-norandrosterone. On July 14, 2003, the laboratory tested the B sample positive for 19-norandrosterone.

Respondent accepted a provisional suspension commencing on July 13.2003. The evidentiary hearing took place on October 1 and 2, 2003, in Denver, Colorado. An expedited preliminary decision was requested. The Interim Award and Decision was issued October 6, 2003.

The Respondent presented a impressive list of witnesses. The Panel is satisfied that the Respondent has an outstanding reputation in the cycling community and is respected by both team members and officials of USA Cycling.
The Panel is, however, disturbed by the testimony from the USA Cycling witnesses and officials. It is obvious that the organization has acted in complete disregard of its athletes, in particular, those below the elite level. There appears to be little to no attempt at communicating the dangers of contaminated supplements to the thousands of USA Cycling athletes. In fact, the testimony indicated that many officials believe that the use of supplements is “necessary” in order to succeed at the elite level. The fact that USA Cycling encouraged the use of supplements, including Hammer Nutrition products, underscored the tot disregard for the warnings USADA and IOC have issued for years. To the Panel, it is inconceivable that such a highly regarded organization could disregard its obligation to its athletes.
Regardless of the inaction or neglect of the cycling community, the athlete must make the final determination as to his/her intake. If these athletes read any of their USADA materials and Respondent apparently did not read it carefully, the message is quite clear that there are numerous risks associated with ingesting these supplements, including the extreme danger to the athlete’s health. While Respondent seemed to acknowledge these risks, her desire to compete apparently overroad those concerns.
The Panel also determines that UCI bears some responsibility in this case. Rather than undertake a thorough investigation of the issues involved in the case, UCI issued its opinions and recommendations. It appears that no effort was made to undertake an examination of USA Cycling’s role in this situation.

The North American Court of Arbitration for Sport Panel decides as follows:
- A doping violation occurred on the part of Respondent. The Panel finds that this was not an intentional doping violation.
- The minimum suspension from all competition for a first offender of two (2) years to take place effective from July 13, 2003 is imposed on Respondent pursuant to UCI Regulations.
- Respondent is prohibited from participating in any capacity whatsoever in any events sponsored by UCI, USOC, or USA Cycling during the 6-mondth period of time from July 13, 2003.
- Prior to the end of the 6-month period, Respondent will meet with her fellow T-Mobile team members and the athletic staff of USA Cycling and discuss with them the USADA and IOC warning on the possible contamination of dietary supplements, including vitamins and minerals. In addition, Respondent will meet at least once with the other licensed elite cyclists of USA Cycling, along with the athletic staff of USA Cycling, to also discuss with them the above USADA and IOC information. She will confirm in writing to USADA that she has completed these conditions of her probation.
- During the term of her full probation, Respondent will submit to urine drug testing at her expense on a monthly basis by an IOC accredited laboratory. If Respondent tests positive during any of this time, her probation will be revoked, any and all competition results will be cancelled in compliance with UCI Regulations, and she will serve the remainder of the two-year suspension, commencing from the time of another positive test result.
- A fine of CFH 700 is assessed against Respondent.
- All competitive results which occurred on or after May 31, 2003, are cancelled.

Christipher L. Campbell, concurring in part and dissenting in part:

Research proved that 18% of vitamin supplements contain substances, not listed on their labels, which are prohibited by the Olympic Movement Anti-Doping Code.
This Panel is now being asked to severely penalize Ms. Neben, who is the likely victim of a contaminated supplement, under a theory of preserving a level playing field for athletes. As arbitrators, it is not our place to debate the rationality of such a rule. However, it is our duty to apply the law to the facts of Ms. Neben's case:
- Limits of the Strict Liability Rule
- Ms. Neben did not inted to place a prohibited substance in het body
- Strict Liability Rule does not apply to sanctions regarding future competitions
- Ms. Neben was not negligent in taking vitamin supplements for her sport of road racing
- Negligence test