TAS 2011_A_2325 UCI c Roel Paulissen & Royale Ligue Vélocipédique Belge (RLVB)

CAS 2011/A/2325 UCI vs Roel Paulissen & Royale Ligue Vélocipédique Belge (RLVB)

Related case:

Swiss Federal Court 4A_110_2012 Roel Paulissen vs UCI & Royale Ligue Vélocipédique Belge (RLVB)
October 9, 2012

In June 2010 the Ministry of the French Community of Belgium reported an anti-doping rule violation against the Belgian professional mountain biker Roel Paulissen after his sample tested positive for the prohibited substance Clomiphene.

Consequently on 22 November 2010 the Royale Ligue Vélocipédique Belge (RLVB) Disciplinary Commission decided to impose a fine and a 2 year period of ineligibility on the Athlete.

Hereafter both the International Cycling Union (UCI) and the Athlete appealed the RLVB Decision with the Court of Arbitration for Sport (CAS).

The CAS Panel upheld the UCI appeal and decided on 23 December 2010 to impose a 2 year period of ineligibility on the Athelete and a 20,800 Euro fine instead of the previous 7,500 Euro fine.

Thereupon the Athlete appealed the CAS decision without succes with the Swiss Federal Court.

CAS 2006/A/1165 Ohuruogu v/UK Athletics Limited

CAS 2006/A/1165 Christine Ohuruogu v. UK Athletics Limited (UKA) & International Association of Athletics Federations (IAAF)

• Athletics
• Athlete’s failure to provide accurate whereabouts information for out-of-competition testing
• Doping offence
• Sanction

1. The application of the UKA and IAAF Anti-Doping Rules with respect to out-of-competition testing, specifically IAAF Rules 32.2(d) and 35.17 is confirmed. The meaning of IAAF Rule 35.17 is unambiguous and states that once three failures have been evaluated as three missed tests within 5 years, then the athlete has committed a doping offence. The wording of that rule does not suggest that a missed test cannot be declared as such until the athlete has been notified of any previous missed test(s).

2. With respect to the sanction, the twelve month ban imposed by UKA on an athlete who has missed three tests is both within the range set by the World Anti-Doping Code and in line with the IAAF Rules for this type of offence. The suspension is proportionate and should not be disturbed.

In July 2006 UK Athletics has reported an anti-doping rule violation against the Athlete Christine Ohuruogu for three missed tests because of her failure to provide accurate whereabouts information for out-of-competition testing. Consequently on 15 September 2006 the UK Athletics Disciplinary Committee decided to impose a 1 year period of ineliglibility on the Athlete.

Hereafter in October 2006 the Athlete appealed the UKA decision with the Court of Arbitration of Sport (CAS).

The CAS Panel deems the burden on an athlete to provide accurate and up-to-date whereabouts information is no doubt onerous. However, the anti-doping rules are necessarily strict in order to catch athletes that do cheat by using drugs and the rules therefore can sometimes produce outcomes that many may consider unfair.

The Panel finds that this case should serve as a warning to all athletes that the relevant authorities take the provision of whereabouts information extremely seriously as they are a vital part in the ongoing fight against drugs in the sport.

Therefore on 3 April 2007 the Court of Arbitration for Sport decides:

1.) The appeal filed by Ms Christine Ohuruogu in relation to the decision of the Disciplinary Committee of the UK Athletics Limited is dismissed.

2.) Ms Christine Ohuruogu is therefore declared ineligible for competition for one year from 6 August 2006.

3.) (…).

CAS 2007/A/1312 Jeffrey Adams v. Canadian Centre for Ethics in Sport (CCES)

Related cases:

• CAS 2007_A_1312 Jeffrey Adams vs CCES
  May 16, 2008
• SDRCC 2006 CCES vs Jeffrey Adams
  June 11, 2007
  
  

• Athletics
• Doping (cocaine)
• Determination of the law applicable to a non-governmental entity
• Absence of evidence of any violation of the applicable
• Human Rights Code
• Anti-doping violation caused by the presence of a prohibited substance
• Performance enhancement
• Absence of evidence of any departure from the anti-doping rules
• No fault or negligence

1. According to Canadian law and jurisprudence, only government entities or private entities statutorily empowered to enact coercive laws binding on the public should be subject to the Canadian Charter of Rights and Freedom and to the National Human Right Act. As a result, the Canadian Center for Ethics in Sport (CCES) which is an independent private organization even though it receives government funding is not subject to the Charter nor to the Canadian Human Right Act and therefore is unable to violate any athlete’s constitutional rights guaranteed under such law.

2. The applicable Human Rights Code (Ontario) prohibits discrimination against individuals in the provision of services on the basis of disability. In order for a disabled individual to assert a prima facie case under the applicable Code, the individual bears the burden to at least show that, prima facie, some form of discrimination occurred. Generally, a disabled individual must show that he or she was denied accommodation that was at least reasonably known as a needed accommodation. If an organization is not reasonably aware of a potentially-equalizing accommodation that could be provided to a disabled person, it cannot be charged with providing that accommodation.

3. Because this is a strict liability violation, the mere uncontroverted presence of a prohibited substance in an athlete’s sample is in and of itself a violation.

4. Performance enhancement is not a factor that may be considered under the applicable anti-doping rules or the WADA Code in determining whether an anti-doping rule violation has occurred or whether sanctions should be mitigated, if the substance is not a “Specified Substance” on the Prohibited List.

5. The applicable anti-doping rules are part of an evolving set of guidelines that slowly adjusts through feedback and experience. Where the rules, at least at the time of the violation, did not create an affirmative duty to warn athletes of the dangers of using an unclean catheter or to provide a clean one, the lack of warning in this respect cannot constitute a departure from the rules. Absent any departure from the rules, the anti-doping authority does not have the burden of showing that such a departure did not cause the anti-doping rule violation.

6. Under the applicable anti-doping rules, the ineligibility period shall be eliminated if the athlete can show how the prohibited substance entered his body and that there was “No Fault or Negligence” in committing the violation. Only in truly exceptional circumstances will the circumstances of an anti-doping rule violation warrant elimination or reduction of a mandatory sanction because of No Fault or Negligence or No Significant Fault or Negligence. Thus, even in cases of inadvertent use of a prohibited substance, the principle of the athlete’s personal responsibility will usually result in a conclusion that there has been some fault or negligence. The degree of such fault or negligence, if not “significant,” may be sufficient to warrant a reduction of the applicable period of ineligibility, but will rarely result in elimination of the period of ineligibility altogether. However, if the entire circumstances and known facts viewed in light of the athlete’s uncontroverted testimony and high character are sufficient for the judging body to come to the conclusion that the adverse analytical finding was the result of the contamination of a catheter and that the athlete was not at fault because he could not reasonably have appreciated the risks of using a used catheter, the athlete’s ineligibility period must be eliminated because he was not at fault even if the athlete has committed the strict liability violation of presence of a prohibited substance.

In June 2006 the Canadian Centre for Ethics in Sport (CCES) has reported an anti-doping rule violation against the Parathlete Jeffrey Adams after he tested positive for the prohibited substance Cocaine.

Consequently the SDRCC Tribunal decided on 11 June 2007 to impose a 2 year period of ineligibility on the Athlete. Hereafter in June 2007 appealed the SDRCC decision with the Court of Arbitration for Sport (CAS).

The Parathlete alleged that in a bar in Toronto, an unknown woman sitting next to him put cocaine in his mouth with her fingers without his consent. Thereupon a catheter he had used that evening to urinate got contaminated with Cocaine and was later used by the Athlete for sample collection. The use of this contaminated catheter in question resulted in a positive drug test. The Athlete also asserted that there had been departures of the CADP Rules and had caused the positive test result.

In view of the evidence the Panel finds that the presence of a prohibited substance has been established in the Athlete's sample and accordingly that he committed an anti-doping rule violation. The Athlete failed to demonstrate that a departure from the CADP Rules had caused the anti-doping rule violation.

The Panel concludes that the Athlete has sufficiently explained in his testimony that there was no Cocaine in his body at the time of testing and that the positive test was the result of contamination by the Catheter in question. The Athlete was the victim of an assault in the bar which led to his ingestion of Cocaine. He cannot be held to have been negligent or otherwise at fault in not preventing that incident from occurring.

Therefore the Court of Arbitration for Sport decides on 16 May 2008:

1.) The Appeal filed by Mr. Jeffrey Adams at the Court of Arbitration for Sport (CAS) against the Canadian Centre for Ethics in Sport on 27 June 2007 is partially upheld.

2.) In accordance with the Doping Tribunal’s findings, an anti-doping rule violation is found to have occurred under CADP Rule 7.16.

3.) Mr. Adams’ Ineligibility period of two years shall be eliminated.

4.) In accordance with the Doping Tribunal’s findings, Mr. Adams’ competition result, medals, points, and prizes received at the ING Ottawa Marathon held at Ottawa, Ontario on May 28, 2006, are forfeited under CADP Rule 7.4.

5.) Mr. Adams is eligible to receive direct financial support from the Government of Canada.

6. (…).

CAS 2003/A/441 Kryxa v/PZLA

In June 2002 the Polish Athletic Federation (PZLA) has reported an anti-doping rule violation against the Athlete Violetta Kryza after her A and B samples, collected in the USA in May 2002, tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

On 26 September the PZLA Disciplinary Committee decided to impose a reprimand on the Athlete. After notification of the PZLA reprimand the IAAF informed the PZLA that the appropriate minimum penalty under the IAAF Rules is two years and asked the PZLA to reconsider the matter.

Because the PZLA Disciplinary Committee failed to respond the PZLA Council decided to appeal this case with the PAA Board which imposed on 11 December 2002 a two year period of ingeligibility on the Athlete. Yet, a PAA hearing was held without notificaton to the Athlete and the decision was communicated to her afterwards.

Hereafter in December 2002 the Athlete filed an appeal with the Court of Arbitration for Sport (CAS).

The CAS Panel finds that the failure to afford Ms Kryza a hearing on the 11 December 2002, or even to notify her that a hearing was to take place, was a serious lapse on the part of the PZLA. In addition, it was a breach of the IAAf Rules and of the principle of' "audi alteram partem".

However, in the particular circumstances of this case, and hearing in mind that Ms Kryza did not challenge the test results, which showed the presence of norandrosterone in the concentration alleged, but has, on this appeal, relied simply on the procedural lapses by the IAAF to protest timeously and PZLA's failure to notify her of the 11 December 2002 hearing, the Panel concludes albeit with considerable regret, that had Ms Kryza been affofded a hearing, it would have been inevitable that the mandatory minimum 2 year suspension would be imposed.

The Panel concludes that no substantial injustice has been done to Ms Kryza as a result of the failure to afford her a hearing.

Therefore the Court of Arbitration for Sports decides on 13 August 2003:

1.) The appeal filed by Violetta Kryza on 9 February 2003 is dismissed.

2.) The Court Office fee of CHF 500 (five hundred Swiss Francs) already paid by the Appellant shall be retained by the CAS.

3.) Each party shall beat its own costs.

CAS 2003/A/452 IAAF v/MAR and Brahim Boulami

Arbitration CAS 2003/A/452 International Association of Athletics Federations (IAAF) v/ Fédération Royale Marocaine d’Athlétisme (MAR) and B.

• Athletics
• Doping (r-EPO)
• Reliability of the testing method
• Accreditation of the testing laboratory

1. The direct urine test used by the laboratory is a valid and reliable test for the detection of r-EPO in urine (the respondents have failed to cast doubt on the evidence brought forth by the IAAF that 80% is a reasonable cut-off point that largely eliminates the risk of false positives in urinary r-EPO test); this direct urine test has sufficient international acceptance for the purpose of detecting r-EPO in the urine of athletes.

2. The laboratory’s lack of specific accreditation to conduct r-EPO testing is not fatal to the legal validity of its r-EPO tests. However, the lack of specific accreditation shifts the burden to the federation to show that the laboratory conducted its testing in accordance with the scientific community's practices and procedures, and that it satisfied itself as to the validity of the method before using it. Such a burden-shifting rule provides the necessary balance between the needs of IOC laboratories to implement new, reliable testing methods as quickly as possible, on the one hand, and the interests of athletes and the sporting community in ensuring trustworthy test results, on the other.

In August 2002 the Marrocco Athletics Federation (Fédération Royale Marocaine d’Athlétisme, MAR) has reported an anti-doping rule violation against the Athlete Brahim Boulami after his A and B samples tested positive for the prohibited substance Erythropoietin (EPO).

On February 6, 2003, the MAR Disciplinary Commission found the Athlete not guilty of a Doping Offense. The MAR provided the following reasons for the decision to the IAAF in a fax dated February 11, 2003:

i.) The athlete was not notified of his right to be accompanied by a representative when he provided a urine and blood sample on 15 August 2002 in breach of paragraph 2.9 of the IAAF's Procedural Guidelines;

ii.) The "B" sample which was provided on 16 August 2002 was analyzed even though the "A" sample result had never been communicated to the athlete;

iii.) The MAR representative Professor Stambouli was denied the opportunity to attend the analysis of the 15 August "B" sample (numbered B071981 in breach of IAAF Procedural Guidelines;

iv.) No results had been provided concerning the athlete's blood sample;

v.) The r-EPO method of testing has not been recognized scientifically or validated by the international scientific community;

vi.) The Lausanne laboratory does not have specific ISO accreditation to conduct r-EPO testing; and

vii.) The athlete categorically denies administering r-EPO.

Hereafter in April 2003 the IAAF appealed the MAR decision of 6 February 2003 with the Court of Arbitration for Sport (CAS).

The CAS Panel concludes that:

(i) on August 15, 2002, the prohibited substance r-EPO was present in the Athlete's urine,

(ii) the direct urine test used by LAD in this case, described both above and elsewhere, is a valid and reliable test for the detection of r-EPO in urine,

(iii) this direct urine test has sufficient international acceptance for the purpose of detecting r-EPO in the urine of athletes, and

(iv) LAD conducted its testing in accordance with the scientific community's practice and procedures for r-EPO testing, and adequately satisfied itself as to the test’s validity prior to use.

For all these reasons, the Panel finds the Athlete guilty of a Doping Offense under the IAAF Rules. Accordingly, the Panel finds that B. should be declared ineligible for two years, pursuant to IAAF Rule 60.2 (a)(i), with credit for suspension time already served from August 28, 2002, until the date of this Award. B. should therefore be eligible for competition on August 28, 2004.

Therefore 19 November 2003 the Court of Arbitration for Sport:

1.) Grants the appeal filed by the IAAF asking the Court to find B. guilty of a Doping Offense under IAAF Rules, and asking the Court to find that the Athlete should be declared ineligible for two years, less the period of suspension served by the athlete.

2.) Declares that the Athlete shall be declared ineligible for two years from August 28, 2002.

3.) (...).

CAS 2004/A/628 International Association of Athletics Federations (IAAF) v. USA Track & Field (USATF) & Y.

Related case:

CAS 2004/A/725 USOC & IAAF vs Michael Johnson, Antonio Pettigrew, Angelo Taylor, Alvin Harrison, Calvin Harrison

• Athletics
• Doping (nandrolone)
• Jurisdiction of the IAAF
• Arbitration Panel to review a decision made by a national body Sanction

1. Pursuant to its own confidentiality rules then in effect, USATF did not notify the IAAF of the positive doping test so as to enable the IAAF to bring the matter before its Arbitration Panel. In those special circumstances, it is fair and reasonable for the CAS to accept the jurisdiction of the IAAF Arbitration Panel to review a decision made by a national body outside the time limit defined by the International Federation Rule (IAAF Rule 21.1 applicable in 2000-2001), given the fact that the IAAF was effectively disabled from reviewing the Appellant’s case until it had seen a copy of the decision challenged and also considering that the IAAF acted prudently in seeking disclosure of that decision before referring the Appellant’s case to arbitration.

2. It would be appropriate to apply the 1999-2000 Rules to the question of the sanction to be applied to the athlete. The consequence of this finding is that the athlete should not have been eligible to compete in any competition during that period, including the Olympic Summer Games in Sydney in 2000 and that the other members of the United States relay team would inevitably lose their Gold Medals. However, it is a matter for the IOC and/or the IAAF to consider, and not for the CAS.

On 11 March 2000 the USATF Doping Hearing Panel sanctioned the Athlete Jerome Young after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

However the USATF Doping Appeals Board (DAB) exonerated the Athltete on 10 July 2000. The DAB found that the fact of the negative test results produced in six days after the sample in this case was taken raised a reasonable doubt as to whether a violation had been committed.

On 27 August 2003 the Los Angeles Times revealed that Jerome Young was the athlete who had competed in Sydney 2000 Olympic Games following a positive test. Shortly afterwards, on 29 August 2003, Young himself confirmed in the media that he had tested positive in June 1999 but that he had subsequently been exonerated of a doping violation.

This was the first time that Young had been identified. On 28 August 2003, the IOC wrote to the IAAF, USOC and WADA requesting information on Young’s case. On 29 August 2003 WADA wrote to the IAAF demanding that it take action in the light of the new information.

After delibarations between the parties about this case the matter was referrred to the Court of Arbitration for Sport (CAS) and the Panel received voluminous pleadings from the parties about the two issues that it has to decide.

Issue 1) “Pursuant to IAAF Rule 21.1 in IAAF Handbook 2000-2001, would it be fair and reasonable for a Panel in the position of the IAAF Arbitration Panel to accept jurisdiction in this case outside the six month deadline?”

Issue (2) “Did the USATF Doping Appeals Board misdirect itself or otherwise reach an erroneous conclusion on 10 July 2000 when it exonerated Young of a Doping Offence?”

On 28 June 2004 the Court of Arbitration for Sport decides that:

1.) In respect of Issue 1, the answer is that it is fair and reasonable for it to accept jurisdiction outside the six month time limit.

2.) In respect of Issue 2, the answer is that the Doping Appeals Board did misdirect itself and reach an erroneous conclusion when it exonerated Young.

(…).

CAS 2002/A/409 Longo / International Association of Athletic Federations (IAAF)

• Athletics
• Doping
• Application for early reinstatement
• CAS jurisdiction

1. The nature of the appealed decision should determine whether an appeal is possible within the meaning of art. 47 of the Code. The test should be whether the nature of the decision is disciplinary, irrespective of whether a judicial or an administrative authority has made the decision against which an appeal is directed.

2. A decision of the IAAF Council admitting an application for early reinstatement in case of exceptional circumstances (IAAF Rule 60.9) relates to the execution of a sanction, not to the sanction itself. Consequently, according to art. R47 of the Code, the CAS has no jurisdiction to review a decision of this nature.

3. A right of appeal against decision of the IAAF Council could be drawn from other IAAF rules than Rule 60.9, in particular Rules 21.2 & 21.3. However applications for reinstatement based on exceptional circumstances are not proceedings between two parties in the sense of IAAF Rule 21.2 and do not fall under the category of disputes listed in IAAF Rule 21.2. Therefore decision on reinstatement applications on the grounds of exceptional circumstances pursuant to IAAF Rule 60.9 cannot be appealed against by invoking the CAS.

On 29 November 2001 the Italian Federazione Italiana di Atletica Leggera (FIDAL) decided to impose a 2 year period of ineglibility on the Athlete Mr. Andrea Longo after his A and B samples tested positive for the prohibited substance Nandrolone. The FIDAL decision was upheld by the FIDAL Appeal Committee on 23 January 2002.

The Athlete did not appeal against the decision of the FIDAL’s appeal tribunal of 23 January 2002 to the CAS nor to the IAAF’s Arbitration Panel. On 13 April 2002, The Athlete, with the assistance of FIDAL, applied to the IAAF Council under IAAF Rule 60.9 for early reinstatement on the grounds of exceptional circumstances.

By letter dated 22 July 2002, The Athlete Mr. Andrea Longo was informed by FIDAL that the IAAF had rejected his application for early reinstatement.

Hereafter on 20 August 2002 the Athlete filed an appeal with the Court of Arbitration for Sport (CAS) against the decision of the IAAF Council of 3 and 4 July 2002 rejecting Mr. Andrea Longo’s application for early reinstatement.

The CAS Sole Arbitrator concludes that decisions of the IAAF Council on reinstatement applications on the grounds of exceptional circumstances pursuant to IAAF Rule 60.9 cannot be appealed against by invoking the CAS.

Therefore on 28 March 2003 The Court of Arbitration for Sport decides:

1.) The jurisdiction of the Court of Arbitration for Sport is denied.

2.) The appeal filed by Mr. Andrea Longo on 20 August 2002 is not entertained.

3.) (…).

CAS 2003/A/448 International Association of Athletics Federations (IAAF) / Fédération Camerounaise d’Athlétisme (CMR)

• Athletics
• Doping (nandrolone)
• Hearing de novo
• Consumption of wild boar meat
• Exceptional circumstances

1. By virtue of IAAF Rule 21.9, all appeals before the CAS constitute a re-hearing de novo of the issues raised by the case, and that in doping cases before the CAS the IAAF shall have the burden of proving, beyond reasonable doubt, that a doping offence has been committed. However, the only issue raised by the present case concerns the sanction applicable in the circumstances, the athlete having apparently decided not to appeal the decision of the national federation acknowledging the doping offence. In that context, there is simply no need for the IAAF to revisit in its appeal materials the factual and scientific evidence of a doping offence.

2. The unintended consumption of foodstuffs or supplements responsible for the presence of a prohibited substance in an athlete’s body is hardly an unusual occurrence, let alone a "truly exceptional circumstance". It is, rather, one of the very “mischiefs” at which the anti-doping provisions of the IAAF Rules, as indeed the rules of other sports federations, are aimed. Even if the athlete were able to demonstrate that the meat she consumed could, and did, cause the elevated levels of norandrosterone detected in her samples, indeed even if the entirety of the athlete’s evidence were taken as true, the wholly "unexceptional" nature of her explanation would preclude the Panel from making the recommendation to the IAAF Council that the period of ineligibility be reduced.

In May 2002 the Cameroon Athletics Federation (FCA) has reported an anti-doping rule violation against the Athlete (-M) after her A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

The Athlete submitted that her consumption of meat from an uncastrated male wild boar constituted, in the circumstances, a reasonable and plausible explanation for the elevated level of norandrosterone in her urine at the time of the testing in question.

The FCA accepted the Athlete's statement and decided on 15 January 2003 to impose a warning on the Athlete. Hereafter in March 2003 the IAAF appealed the FCA decision with the Court of Arbitration of Sport (CAS).

The CAS Panel unanimously finds that all of the elements of a doping offence are proven and that the IAAF has carried its burden of demonstrating that the athlete committed a doping offence within the meaning of the CAS Code and the IAAF Rules, which impose a two-year minimum suspension.

Given that the athlete competed several times while she knew that she was suspended and that the last date on which she competed was 8 May 2003, her period of ineligibility should run as of that date.

M.’s explanation regarding the cause of her elevated norandrosterone levels does not, in the opinion of the Panel, reveal circumstances of a truly exceptional nature such as to persuade it to recommend to the IAAF Council that the period of ineligibility be reduced in accordance with IAAF Rules.

The Athlete's request that the Panel recommend that the IAAF Council reduce such period of ineligibility is therefore denied, without prejudice to the athlete's right to apply directly to the IAAF Council for such a reduction.

Therefore the Court of Arbitration for Sport decides on 2 October 2003:

1.) The jurisdiction of CAS is affirmed.

2.) The appeal filed by the IAAF on 17 March 2003 is upheld.

3.) The decision issued by the Cameroon Athletics Federation on 15 January 2003 is annulled.

4.) M. shall be declared ineligible for competition for two years commencing on 8 May 2003.

5.) (...)

CAS ad hoc Division (O.G. Sydney) 00/015 Mihaela Melinte / International Amateur Athletic Federation (IAAF)

• Athletics
• Doping (nandrolone)
• Provisional suspension imposed by an IF during the Olympic
• Games CAS jurisdiction
• Principle of strict liability

1. By reason of their commitment to the Olympic Movement and their participation in the Olympic Games, the international federations must be deemed to have subscribed to the arbitration clause in the Olympic Charter.

2. If an athlete is removed from the field of play moments before his/her turn to compete, such action creates a dispute arising during the Games within the meaning of Article 74 of the Olympic Charter. On that basis CAS has jurisdiction to rule on the dispute.

In September 2000 the IAAF has reported an anti-doping rule violation against the Romanian Athlete Mihaela Melinte after her sample tested positive for 19-norandrosterone (Nandrolone). After notification to the Romanian Athletic Federation a provisional suspension was ordered.

The Athlete was participating at the Sydney Olympic Games and not notified when she was informed on 27 September 2000 that she has been removed from the participants’ list on account of a doping violation. She was then escorted off the field.

Hereafter on 28 September the Athlete filed an appeal with the CAS Sydney Ad hoc division.

At the conclusion of the hearing, the Panel rendered the following oral ruling on the Application:

• a.) This is an Application for urgent relief affecting the Applicant’s eligibility to compete in the hammer throw later today.
• b.) The Panel finds that the manner in which the Applicant was advised of her suspension and removed from the athletic field was embarrassing and disrespectful. During the hearing, the IAAF expressed its apology for this circumstance.
• c.) The Panel finds that it does have jurisdiction to order the relief requested if it deems that relief justified.
• d.) The Applicant’s essential contention is that the IAAF failed to follow its own rules - particularly because the athlete never had a chance to put forth her position explaining this positive test result.
• e.) However, the Applicant acknowledged at this hearing that she had the opportunity to present to this Panel the positions which she would have provided to the IAAF. The Panel has also heard the explanations of the IAAF.
• f.) The Panel has considered all of the forgoing and finds no violation by the IAAF of its rules which justifies granting the relief requested.
• g.) The Application is therefore denied.

CAS 2011/A/2566 Andrus Veerpalu v. International Ski Federation

Related cases:

• CAS 2020_ADD_7 ISF vs Andrus Veerpalu
  March 17, 2021
• CAS 2020_A_6781 Andrus Veerpalu vs FIS
  July 21, 2020
• FIS 2011 FIS vs Andrus Veerpalu
  August 21, 2011

In February 2011 the International Ski Federation (FIS) has reported an anti-doping rule violation against the Estonian skier Andrus Veerpalu after his A and B samples tested positive for the prohibited substance recombinant Human Growth Hormone (hGH) at the same time that the Athlete announced his retirement from professional cross-country skiing.

On 21 August 2011 the FIS Doping Panel decided to impose a 3 year period of ineligibility on the Athlete starting on the date of his retirement, i.e. 23 February 2011. The FIS Doping Panel ruled that the Adverse Analytical Finding of hGH in the Athlete’s blood had been proven in violation of the FIS ADR.

In first instance the FIS Doping Panel rejected the Athlete’s argument that the delay between the analyses of the A and B samples had affected the accuracy of the Test. In the matter of the collection and handling of the samples the FIS Doping Panel also rejected the Athlete’s argument that the samples were no longer fit for testing at the time they had arrived at the Laboratory.

Hereafter in September 2011 the Athlete appealed the decision of the FIS Doping Panel with the Court of Arbitration for Sport (CAS).

The Athlete denied having admitted the use of hGH, nor that he had violated the applicable doping rules. He asserted that the Test is unreliable for the following reasons:

• the Test is defective and scientifically invalid, particularly because of unreliable decision limits;
• the Laboratory was not accredited to perform the Test;
• the Test was improperly applied and administered by the DCO and the Laboratory; and
• the Athlete’s individual circumstances render any positive Test result meaningless.

FIS contended that the Athlete’s anti-doping rule violation has been established by three different means:

• through the AAFs from the A and B samples;
• by the alleged admissions from the Athlete of hGH use; and
• from the Athlete’s longitudinal profile, that is, the common range of his previous test results.

The CAS Panel did not admit the FIS’s third submission regarding the Athlete’s longitudinal profile because the FIS failed to submit the relevant DCO reports and laboratory documentation for verification of such results.

Following assessment of the evidence the Panel concludes that the Athlete has failed to meet the required burden of proof regarding the reliability of the Test (except for that of the decision limits). Furthermore the Panel finds that FIS has failed to meet its burden of proof in relation to the reliability of the test’s decision limits and in establishing the violation of FIS ADR by means other than the Test, namely through admission.

Because FIS has not established, to the Panel’s comfortable satisfaction, that the test’s decision limits are reliable, the Panel finds that the Athlete’s AAF is not upheld. The Panel reiterates its view that FIS has proven that the Test itself is reliable, but that, as a matter of procedure, it has not proven the same in respect of the test’s decision limits.

The Panel notes that there are many factors in this case which tend to indicate that the Athlete did in fact himself administer exogenous hGH. However because the decision limits have not been proven as reliable in the course of this proceeding, the violation of the FIS ADR cannot be upheld on appeal. Consequently the ban imposed by the decision of the FIS Doping Panel is overturned.

Therefore the Court of Arbitration for Sport decides on 25 March 2013:

1.) The Appeal filed by Andrus Veerpalu on 12 September 2011 is upheld.

2.) The decision of the FIS Doping Panel of 22 August 2011 is set aside.

3.) The award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Andrus Veerpalu, which is retained by the CAS.

4.) The FIS shall pay to Andrus Veerpalu CHF 10’000 (ten thousand Swiss francs) as contribution towards his costs incurred in the course of these proceedings.

5.) All further and other claims for relief are dismissed.