CAS 2011/A/2522 WADA v. Federación Colombiana de Patinaje & Nicolás Bermúdez

Related cases:

• CAS 2011_A_2524 WADA vs FCP & Perez Moreno
  August 23, 2012
• CAS 2011_A_2523 WADA vs FCP & Serrano Burgos
  August 23, 2012

On 18 May 2011 the Colombian Skating Federation (FEDEPATIN) Disciplinary Commission decided to impose a 12 month period of ineligibility on the roller sports Athlete Nicolás Bermúdez Corredor after his samples tested positive for the prohibited substances Methylhexaneamine and Androstatrienedione.

Hereafter in August 2011 the World Anti-Doping Agency (WADA) appealed the FEDEPATIN Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

The Athlete admitted the violation and denied the intentional use of the substances. He asserted that two contaminated supplements he had used were the source whereas they substituted two supplements he customarily used.

Following assessment of the evidence and the Athlete's conduct in this case the Panel finds that he failed to explain with corroborating evidence how the substances entered his system. Further the Panel deems that he acted negligently with his supplements.

Therefore the Court of Arbitration for Sport decides on 23 August 2012 that:

1.) The appeal of WADA is admissible.

2.) The decision rendered by the Disciplinary Commission of the FCP on 18 May 2011 against Nicolás Bermúdez Corredor is set aside.

3.) Nicolás Bermúdez Corredor is sanctioned by a two-year period of ineligibility, which started on 18 May 2011. The period of provisional suspension of 30 (thirty) days shall be credited against the total period of ineligibility to be served.

4.) All competitive tesults obtained by Nicolás Bermúdez Corredor from 22 October 2010 shall be disqualified with all the resulting consequences including forfeiture of any medals, points and/or prizes.

5.) This award is pronounced without costs, except for the Court Office fee of CHF 1'000 (one thousand Swiss Francs) already paid by WADA which is retained by the CAS.

6.) Each party shall bear its own costs.

7.) All other prayers for relief are dismissed.

CAS 2012/A/2701 WADA v. IWWF & Aaron Rathy

CAS 2012/A/2701 World Anti-Doping Agency (WADA) v. International Waterski and Wakeboard Federation (IWWF) & Aaron Rathy

• Wakeboard
• Doping (methylhexaeamine)
• Athlete’s duty to ensure that no prohibited substance enters his body to benefit from no significant fault or negligence
• Conditions for the elimination or reduction of the period of ineligibility for specified substances
• Determination of the applicable sanction in light of the athlete’s degree of fault

1. An athlete, in order to fulfill his/her duty of care according to Art. 2.1 IWWF Anti-Doping Rules (ADR) to benefit from the No Significant Fault or Negligence regime, has to be active to ensure that a medication or a supplement s/he uses does not contain any compound that is on the prohibited list. If the athlete has not done enough to ensure this then s/he has not established that s/he bears No Significant Fault or Negligence. In this respect, an athlete who did not take any basic precautions, by consulting a doctor or simply by reading the official website of a dietary supplement manufacturer departed from his/her duty of care. Enquiries towards a store’s salesman are evidently not sufficient to satisfy his/her duty of care.

2. To benefit from an elimination or reduction of the period of ineligibility for specified substances under specific circumstances as provided under Art. 10.4 IWWF ADR or Art. 10.4 WADC, an athlete must first (i) establish how the specified substance entered his/her body and then (ii) that such specified substance was not intended to enhance the athlete’s sport performance.

3. The Comment to Art. 10.4 WADC indicates that, in assessing an athlete’s degree of fault, the circumstances considered must be specific and relevant to explain the athlete’s departure from the expected standard of behavior. It is anticipated that the period of ineligibility will be eliminated entirely in only the most exceptional cases. According to Art. 10.4 IWWF ADR a first violation should lead to at a minimum, a reprimand and no period of ineligibility from future events, and at a maximum, two years of ineligibility. If an athlete has relied on a supplement which s/he had not used before and on the answers given by a seller, s/he has been very negligent and his/her fault is significant. A mitigating factor can be that the athlete, by purchasing a dietary supplement, did not intend to enhance his/her performance but rather reduce his/her weight. In spite of the athlete’s expressed regret, of his cooperation and honesty about the circumstances resulting in the violation, a sanction amounting to a sole reprimand is however evidently and grossly disproportionate to the offence. A period of more than 12 months of ineligibility is appropriate.

On 29 December 2011 the International Waterski & Wakeboard Federation decided to impose a reprimand on the Canadian Athlete Aaron Rathy after he tested positive for the prohibited substance methylhexaneamine (1,3-dimethylamylamine).

Hereafter in January 2012 the World Anti-Doping Agency (WADA) Appealed the IWWF Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a sanction between 12 and 24 months.

The Athlete had admitted the violation and denied the intentional use of the substance. He explained that he underwent knee surgery and thereupon had purchased and used the product OxyElite Pro in order to lose some weight to reduce the physical stress on his knee.

He was unaware that the product contained a prohibited substance and asserted that he had researched the  ingredients of the product before using.

The Panel finds that the presence of a prohibited substance had been established in the Athlete's samples and accordingly that he committed an anti-doping rule violation.

In view of the evidence the Panel accepts that the Athlete's violation was not intentional. Considering his conduct the Panel deems that the Athlete failed to demonstrate No Significant Fault or Negligence.

Therefore the Court of Arbitration for Sport decides on 21 November 2012 that:

1.) The appeal of WADA is admissible.

2.) The decision of the IWWF Anti-Doping Hearing Panel is set aside.

3.) Aaron Rathy is sanctioned with a 15 month’s period of ineligibility, starting on 1 August 2012. Any period of ineligibility, whether imposed on, or voluntarily accepted by Aaron Rathy before the entry into force of the CAS award, shall be credited against the total period of ineligibility to be served.

4.) All competitive results obtained by Aaron Rathy from 22 October 2011 shall be disqualified with all the resulting consequences including forfeiture of any medals, points and prizes.

5.) (…).

6.) (…).

7.) All other prayers for relief are dismissed.

CAS 2011/A/2678 International Association of Athletics Federations (IAAF) v. Real Federación Española de Atletismo (RFEA) & Francisco Fernández Peláez

• Athletics (race walking)
• Doping (substantial assistance)
• Admissibility of the appeal (validity of the extensions of the deadline to appeal)
• Power of review of an IF regarding decisions taken at national level in doping cases
• Condition to benefit from a reduction of the sanction based on Substantial Assistance
• Scope of the factors considered in assessing Substantial Assistance
• Starting date of the sanction

1. According to Article 42.13 of the IAAF Rules, an appellant shall have forty-five (45) days in which to file his statement of appeal with CAS starting from the date of communication of the written reasons of the decision to be appealed. The IAAF Rules do not require a particular justification for extending the deadline to file an appeal. However, it cannot be contested that administrative efficiency, and in particular the desirability for any International Federation (IF), to have all the elements in its possession in order to take a reasoned decision on whether to appeal, are sufficient grounds to warrant a postponement of the deadlines to appeal a decision rendered by a national federation until such time as the IF has been sufficiently informed on the meaning, nature, and scope of the national federation’s decision.

2. It is fundamental that decisions taken at a national level in doping cases, particularly regarding the imposition of sanctions, be subject to the review of the relevant international sporting federation. The power conferred to the international federation aims, inter alia, at maintaining the integrity of international competitions by preventing national federations from not imposing any sanction at all on an athlete or imposing a less severe sanction than justified merely in order to allow the athlete to compete at international level. In this respect, a decision regarding an exception for Substantial Assistance must, in the last instance, remain under the control of the entity charged with enforcing the corresponding anti-doping rules, or to a body appointed by that entity. Criminal law provisions concerning confidentiality cannot justify non-compliance with the relevant IF provisions in order to obtain a reduction in the ineligibility period pursuant to the IF provisions.

3. In order to benefit from a reduction of the period of ineligibility under Article 40.5(c) of the IAAF Rules, it must be established that an athlete has provided Substantial Assistance to the IAAF, his/her National Federation, an Anti-Doping Organization, criminal authority or professional disciplinary body, resulting in the discovery or establishment of an anti-doping rule violation by a third party, or in the discovery or establishment of a criminal offence or of a breach of professional rules by a third party. A simple indication of cooperation, which could hypothetically result in the discovery of a criminal offense, is not sufficient for the Assistance to be Substantial.

4. A commentary of a legal provision cannot replace the substance of the provision itself. In this respect, considering that the sine qua non condition that the assistance result in discovering or establishing doping or criminal offenses or a violation of professional rules by third parties must first be satisfied, the factors set forth in the commentary of the WADA Code can only be taken into account in assessing the importance of the Substantial Assistance in order to determine the extent of the reduction of the ineligibility period in each particular case.

5. The provisions regarding substantial delays do not provide an automatic right to start the period of Ineligibility at an earlier date that stated, but a discretionary power to appreciate whether, taking into consideration the circumstances of the case, the ineligibility period should start earlier.

In November 2009, the Spanish Guardia Civil carried out a number of police raids in locations across Spain that targeted an alleged doping ring involving doctors, pharmacists and athletes. This police operation, called Operación Grial, led to the arrest of 11 individuals, including 3 cyclists. The activities of the alleged doping ring included the distribution of EPO, growth hormones and masking agents.

The home of the Athlete Francisco Fernández was one of the locations raided by the Civil Guard, where EPO and other performance-enhancing drugs were reportedly found. The Athlete admitted possession of prohibited substances, testified about his involvement in this doping network and cooperated with the Spanish judicial authorities and the police.

Initially on 24 February 2010 the Committee on Sports Discipline of the Royal Spanish Athletics Federation (RFEA) decided to impose a sanction of 2 years on the Athlete. However following a number of proceedings and appeals at national level the RFEA Committee on Sports Discipline decided on 17 May 2011 to impose a reduced 1 year period of ineligibility on the Athlete.

Between April 2010 and December 2011 the International Association of Athletics Federations (IAAF) was impeded in its attempts to obtain relevant information from the RFEA. It repeatedly received no answers from the RFEA or received information very late. As a result the IAAF had to extend the deadline to file an appeal, in order for its rights of appeal to remain unaffected.

Ultimately in December 2011 the IAAF appealed the RFEA Decision of 17 May 2011 with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

The Sole arbitrator assessed and addressed the following issues raised by the parties:

• Applicability of Spanish Law within the RFEA Decision
• Violation of the Agreement by the RFEA
• Clash between Disciplinary Proceedings and Criminal Proceedings
• Existence of the Anti-Doping Rule Violation
• Fulfilment of the Conditions to Benefit from a Reduction of the Sanction under IAAF Rules
• Start of the Ineligibility Period

Accordingly the Sole Arbitrator determines that:

• The RFEA disregarded the IAAF Rules and violated its obligations as a member of the IAAF.
• The RFEA deliberately violated the terms of the Parties signed Agreement.
• The decision regarding the exception for Substantial Assistance must, in the last instance, remain under the control of the entity charged with enforcing the corresponding anti-doping rules, or to a body appointed by that entity.
• It is undisputed, and admitted, that the Athlete committed an anti-doping rule violation under the IAAF rules.
• Although the Athlete provided at least some assistance to the authorities, this cannot qualify as Substantial within the meaning of Article 40.5(c) of the IAAF Rules.
• It was disproportionate to reduce the period of ineligibility in this case by one half of the usually applicable sanction of 2 years.
• The period of ineligibility starts on the date of this award, lees the period of provisional suspension and/or ineligibility that the Athlete has already served.

Therefore the Court of Arbitration for Sport decides on 17 April 2011:

1.) The appeal filed by the International Association of Athletics Federations on 20 December 2011 against the decision of the Real Federación Española de Atletismo Committee on Sports Discipline of May 17, 2011 is admissible.

2.) The appeal filed by the International Association of Athletics Federations is upheld.

3.) The decision of the Real Federación Española de Atletismo Committee on Sports Discipline of May 17, 2011 is set aside.

4.) Mr. Francisco Fernández Peláez is declared ineligible for a period of two years, commencing on March 14, 2012, less the period of provisional suspension and/or ineligibility that he has already served namely one year, three months and four days.

(…)

7.) All other requests for relief are rejected.

This research report focuses on the culture of young Belgian, French and Swiss road cyclists aged 18 to 23, on the way to becoming professionals or who are already professionals. The main goal is to understand and compare the effects of various forms of socialization of young cyclists on their attitude towards doping. This stage of the career has been largely neglected although it constitutes an essential phase in understanding the consumption of prohibited substances. Indeed, this young cyclist’s exposure to a new environment and a new professional approach is rather overwhelming, offering both a potential career and profits, and attendant risks. The goal of this research is to understand whether the relationship with pharmacology and doping evolves and if approaches to organization and support for the young athletes have an impact on their tendency to consume these substances. In particular, we hope to learn about the effects of interactions amongst cyclists and the various groups supporting them (peers, former cyclists, coaches, managers, and doctors) on their level of information, and their know‐how, as well as on the standards and
values adopted during this phase of professional socialization.

Conclusion
Actors in the cycling milieu describe very significant changes in discourse that seem to reflect an evolution in the way doping is perceived. The transformation of modes of support by teams deliberately invested in the battle against doping has clear consequences. In well supported teams, doping is no longer a collective practice, as it used to be. Therefore, the cyclist culture
has changed significantly but this does not mean that doping has been eradicated and that the temptation to consume these substances does not exist. Yet the practice of doping is certainly rare for “strongly supportive” teams and this can only be an individual practice in other teams. These transformations in the
cyclist culture do not at all indicate that other teams’ practices, especially in other countries, have evolved in the same way, nor that older cyclists in the most highly ranked professional teams have changed in a similar fashion.

Finally, nothing guarantees that a shift to a team with different attitudes towards doping will prevent cyclists from consuming illegal substances. The approaches to coaching, habits of consumption of legal substances, the perception of doping, and the insecurity
of the cyclist’s professional condition are factors that, in the least supportive teams, are likely to lead to a perception of doping according to a range of ambivalent standards.

The Disciplinary Committee involved in the disciplinary case acquitted the person concerned. The Dutch Royal Strength Sport Fitness Federation (KNKF) has reported against this person for a failure to comply by refusing to cooperate in an out of competition doping control test. The Disciplinary Committee based her acquittal on the consideration that person concerned terminated his membership and stopped his sport.

The KNKF came in appeal after the decision of the Disciplinary Committee. Person concerned did not filed a written defence statement and was not present at the hearing.

The KNKF argued that person actually is a member of the KNKF and that he as a former in competition participant actually was subjected to the statutes and regulations, including the Doping Regulations.

In the opinion of the KNKF the Disciplinary Committee did not sufficiently explain why bondage to the Doping Regulations was unreasonable heavy. Person claimed that he was not a member at the time of the doping control test and therefore under the impression that he therefore was entitled to refuse the doping control test. Subject argued that he already has stopped practicing his sport within the context of the NPB (Dutch Powerlifting Federation),a sub federation of the KNKF, in April 2007.

The appeal committee is of the opinion that person concerned had notified the KNKF to terminate his membership. Sufficiently plausible the appeal committee takes the membership termination by the person concerned for August 10, 2007, therefore, as an established fact. Given the gravity of the obligation of the anti doping regulations on one hand and the interests of the KNKF to end the membership at the end of the calendar year on the other, the Committee is of the opinion that the interests of the person concerned outweighed. Concerned could not be required to continue to take the membership until the end of the year. The refusal of the person concerned was, in the opinion of the committee rightly. So there was no reason to subject the verdict.

The appeal committee also followed the opinion of the Disciplinary Committee in the first instance. Now the appeal committee considered that the KNKF should have discontinue the membership in accordance with the wishes of the person concerned and no doping control test could have been requested, which incidentally forwarded that no further discussion is needed.

Person is acquitted and the appeal is dismissed. The costs associated with the treatment of this case were charged to the NPB, c.q.KNKF.

The Dutch Royal Strength Sport Fitness Federation (KNKF) has reported against this person for a failure to comply by refusing to cooperate in an out of competition doping control. Person has filed a defence and the case is treated orally.

Person concerned, stated in his defence that he was no longer a member at the time of the doping test and assuming that he therefore was entitled to refuse the doping control test. At the hearing he stated that he stopped practicing his sport within the context of the KNKF in the spring of that year. The doping control test was in the autumn of that same year. The KNKF has been invited by the Disciplinary Committee to provide information regarding the system of membership records. The KNKF did not respond to this invitation.

On the basis of the documents attached by the KNKF at entry, a print-out of its register of members and the written defence based documents of the person concerned the Disciplinary Committee considered sufficiently proven that person in question terminated his membership well before the date of the doping control test and had stopped his sport activities within the context of the KNKF.

In the opinion of the Disciplinary Committee it is under these circumstances unreasonably onerous to consider the obligations of the Doping Regulations regarding out of competition doping controls. The person concerned therefore should not have been selected for a doping control test. Failure to comply therefore does not foul on the Anti Doping Regulations. Person was acquitted.

The phenomenon of prohibited substance use among athletes, intending to increase artificially their performance has its origins in the ancient times and it is now so present, as it is supported and fed by the professional sport, so much commercialized and mediated. In the current study, we take into account that according to the humanistic psychology, the individual is free to decide over his or her life, being capable to make decisions and to lead himself or herself. Although each individual is unique, he lives in a collectivity, which is on its turn unique. From the synthesis of the two systems results a specific behavior of the individual athlete, who lives the sport activities specific situations. The efforts of the militants for a clean sport which are now or efforts, must be based on a good knowledge of the personality traits of the athletes and the impact of the impact of the entourage over them. All educational activities aiming to reduce and finally eradicate doping in all sports should be developed on these bases.

The main conclusion of our research confirms in general the formulated hypothesis that the elements of the athletes’ personality structure and the social environment may represent risk factors for the doping behavior. The risk factors with important signification are the ones in the system of personality features, especially in the domain of attitudes, knowledge and moral beliefs, all of these related to the aspects specific to sport practice and entourage. The idea that the features of Type A of personality of Romanian athletes are part of the risk factors category is not confirmed well enough.

Background
One understudied approach to anabolic steroid (AS) prevention programs is the inclusion of parents. Parents are in a unique position to send consistent messages about AS that transcend changes in coaches and team affiliation. Additionally, parents are in the position to create age-appropriate communications consistent with their own personal values. Despite the potential of parent-based approaches, there is very little research to guide the development of such programs. The purpose of the present study was to test whether parent-based programs may be a useful approach in the prevention of AS and performance enhancing nutritional supplement (NS) use.

Methods
A sample of about 250 adolescent athletes from three high schools in the United States (US) completed a questionnaire. Three aspects of parent-adolescent communication were assessed: discussions about the performance effects (e.g., train harder), side effects and protective factors (e.g., morality) associated with AS use and NS use. Additionally, adolescents reported the extent to which they perceived their parents to be a good source of information (i.e., the quality of information) and whether they would go to their parents for information about AS and NS.

Results
For adolescents who did not perceive their parents to be good sources of information or who would not go to parents for information, more parent-adolescent communication about AS was associated with greater intentions to use AS in the future. This was true for all aspects of communication: discussions about performance effects associated with AS use, side effects of AS use, and protective factors. In contrast, for those adolescents who perceived their parents to be good sources of information or who would go to their parents for such information, increased communication did not lead to an increase in intentions to use AS and may lead to decreased intentions to use AS.

With respect to NS use, results showed that discussions about performance effects were associated with higher intentions to use NS, while discussions about protective effects were associated with lower intentions to use NS. Discussions about side effects appeared to be unrelated to intentions to use NS. The quality of information offered by parents and whether the adolescent would consult his/her parents for this information had no effect on intentions to use NS.

Conclusion
Results suggest that increasing communication about AS, which involves information about performance effects, side effects and protective factors, will not lead to increases in intentions to use AS when adolescents perceive their parents to be a good source of information and are willing to go to parents to get such information. This implies that parents can convey information about AS without fear that such discussions will necessarily place adolescents at higher risk of using AS in the future.

However, results also indicate that increasing communication about AS, which involves information about performance effects, side effects and protective factors, may lead to increases in intentions to use AS when adolescents do not perceive their parents to be a good source of information and when they are not willing to go to parents for such information.

With respect to use of NS, discussions about performance effects were associated with higher intentions to use whereas discussions about protective factors were associated with lower intentions to use NS.

Context
The mission of WADA is to “promote, co‐ordinate and monitor, on an international basis, the fight against doping in sport in all its forms” (WADA, 2009; p. 2). To further WADA’s anti‐doping initiatives, a Social Sciences Research Grant Program was created to “encourage research in the social sciences and to obtain information, which will enable more efficient doping‐prevention strategies” (p.2).

The present study was funded by the WADA Social Sciences Research Grant Program. The general aims of this project were to:

1. Identify factors that motivate young athletes to use performance enhancing drugs (PEDs)
2. Identify factors that deter young athletes from using PEDs.

Conclusions
The findings of the present research show that there is a clear link between moral functioning, as originally conceptualized by Rest (1984) and attitudes towards PEDs. There is also a clear link
between moral disengagement, as originally conceptualised by Bandura (1991) and attitudes towards PEDs. In short, morality, however it is theoretically conceptualised and operationalised, predicts attitudes to doping.
It is necessary to develop training programs that aim to educate young athletes and thus deter future drug use. However, there are some conceptual issues that should be addressed before embarking on any such efforts. While the current study shows a strong link between morality and attitudes to PEDs, when asked to identify the ‘top of mind’ disadvantages of PED use, the respondents overwhelmingly identified health related problems.
Future research employing measures of morality based on both Rest’s and Bandura’s may be warranted, particularly if placed in a broader framework aiming to develop a reliable and valid measure of morality in sporting contexts. This should clearly include contexts such as PED use.

CAS 2008/A/1516 World Anti-Doping Agency (WADA) v. Comitato Olimpico Nazionale Italiano (CONI), Federazione Italiana Tennis Tavolo (FITET) & Valentino Piacentini

• Table tennis
• Doping (Cocaine)
• Exceptional circumstances
• Suspension already served

1. The list of circumstances which may but do not have to lead to a reduction of the suspension cannot be exhaustive. In other words, it is not limited to the exemplifying list contained in the comment regarding art. 10.5.2 of the World Anti Doping Code or related provisions. However, no exceptional circumstances can justify an elimination or reduction of the stipulated suspension in the case of an athlete who knew prior to consuming the cocaine positively of the character of the substance which he may well have consumed in a state of euphoria but nevertheless in knowledge of the circumstances and finally intentionally.

2. The suspension already served has to be credited against the two-year suspension imposed in favour of the athlete.

On 15 November 2007 the Italian Corte di Apello Federale decided to impose a 1 year period of ineligibility on the Table Tennis player Valentiono Piacentini after he tested positive for the prohibited substance Cocaine.

Following the appeal filed by the World Anti-Doping Agency (WADA) the Giudice di Ultima Istanza in material di doping del CONI decided on 4 February 2008 to impose a 1 year and 8 month period of ineligibility on the Athlete.

Hereafter WADA appealed the decision of 4 February 2008 with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a sanction of 2 years on the Athlete.

The Athlete admitted the violation and denied the intentional use of the substance. He stated that he had used the substance 2 days before the competition.

The Sole Arbitrator determines that the Athlete had committed an anti-doping rule violation and that there are no grounds for a reduced sanction.

Therefore the Court of Arbitration for Sport decides on 11 September 2008:

1.) The appeal filed by the WADA on March 17, 2008 is admissible.

2.) The appeal filed by the WADA on March 17, 2008 is upheld, and the appealed Decision issued by the Giudice di Ultima Istanza in material di doping del CONI on February 4, 2008 is varied to impose a two-year sanction.

3.) Valentino Piacentini is declared ineligible for competition for two years commencing on July 12, 2007. The competitive results obtained by Mr. Piacentini from June 8, 2007 to July 12, 2007 are disqualified.

4.) (…).

5. All other prayers for relief are dismissed.