CAS 2008/A/1490 World Anti-Doping Agency (WADA) v. United States Anti-Doping Agency (USADA) & Eric Thompson

• Athletics (high jump)
• Doping (cocaine)
• Reduction of the period of ineligibility
• Factors to consider when reducing the sanction
  
  

1. In determining whether a period of ineligibility may be reduced pursuant to Rule 40.3 of the IAAF Rules, the adjudicating body must determine whether exceptional circumstances exist which, when viewed in the totality of the circumstances of the specific case, demonstrate that the athlete’s fault or negligence is not significant. When the athlete has established how the prohibited substance entered his system, the threshold for consideration of a reduction of the period of suspension pursuant to IAAF Rule 40.3 is met.

2. It is a series of factors all of which taken together in the factual context which gives rise to the exceptional nature of a case and justifies the reduction of the athlete’s period of ineligibility. Among those factors are the athlete’s complete lack of experience in doping matters and as a national or international athlete the lack of guidance and support from his coaches or others; the lack of intention to influence or enhance his/her performance at the relevant time; and his/her relatively young age.

Mr. Eric Thompson is a track and field Athlete and at the time student at the University of Arkansas.

USADA has reported an anti doping rule violation against Respondent after his samples tested positive for the prohibited substance cocaine. After notification the Athlete accepted a provisional suspension and he was heard for the North American Court of Arbitration for Sport (NACAS).

The Athlete acknowledged he had used a small amount of cocaine at a school party two days before the competition and he had no intention to enhance sports performance. The result of the doping test confirmed the Athlete’s statement.
Considering the circumstances in this case the North American Court of Arbitration for Sport Panel decides on 31 January 2008 to impose a 1 year period of ineligibility on the Athlete.

Hereafter in February 2008 the World Anti-Doping Agency (WADA) appealed the NACAS decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the NACAS decision and to sanction the Athlete with a 2 year period of ineligibility.

The CAS Panel concludes that exceptional circumstances permit a reduction of the otherwise applicable period of ineligibility of two years. However the CAS Panel arrive at the same conclusion for somewhat different and more comprehensive reasons that those of the NACAS Arbitrator.

Therefore the Court of Arbitration for Sport decides on 25 June 2008:

1.) The appeal filed by WADA on 20 February 2008 is dismissed.

2.) This Award is pronounced without costs, except for the Court Office fee of CHF 500 paid by WADA, which is to be retained by the CAS.

3.) Each party shall bear its own costs.

CAS 2012/A/2756 James Armstrong v. World Curling Federation (WCF)

Related case:

World Curling Federation 2012 WCF vs James (Jim) Armstrong
March 6, 2012

• Wheelchair curling
• Doping (Tamoxifen)
• Relation between Article 10.5.1 and Article 10.4 WADA Code
• Use of utmost caution by an athlete when storing his medicine
• Strict approach in the CAS power reviewing the discretion enjoyed by the disciplinary body of an association to set a sanction
• Requirements to be met in case of “no significant fault or negligence”

1. Article 10.5.1 WADA Code is the applicable rule in the event that an athlete is able to establish that he bears no fault or negligence in connection with the presence of a Specified Substance in his sample. This follows from the fact that Article 10.4 does not provide for a complete elimination of any sanction, but rather stipulates a “reprimand” as the most lenient consequence of the presence of a Specified Substance in a sample. In a case where an athlete is found to bear no fault at all, he cannot be sanctioned, not even with a reprimand, and this is what is provided for in Article 10.5.1 which applies to Specified and non-Specified Substances. By contrast, when negligence in connection with a Specified Substance comes into play, Article 10.4 is lex specialis vis-à-vis Article 10.5.

2. The fact that the athlete stored his own medicine together with the medicine of his wife in a box and also reused containers of Tamoxifen, certainly does not constitute an exercise of utmost caution. It should have been more than obvious to the athlete that the medicine could have been easily mistaken. This consideration would and could have been made by any person and does not even require utmost caution, but rather any form of ordinary caution, no matter whether the respective person is a health professional or not.

3. CAS “enforces a strict approach in the definition of its power reviewing the exercise of the discretion enjoyed by the disciplinary body of an association to set a sanction”. This Panel confirms the CAS jurisprudence according to which the measure of the sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rules, can be reviewed only when the sanction “is evidently and grossly disproportionate to the offence”. According to CAS jurisprudence, the sanction imposed on an athlete must not be disproportionate to the offence and must always reflect the extent of the athlete’s guilt.

4. According to CAS case law “the requirements to be met by the qualifying element «no significant fault or negligence» must not be set excessively high … [nor] too low”.

In January 2012 the Wold Curling Federation (WCF) has reported an anti-doping rule violation against the Athlete James Armstron after his sample tested positive for the prohibited substance Tamoxifen.

The Athlete was notified but not provisional suspended thereafter. He filed a statement and supporting evidence in his defence and was heard for the WCF Case Hearing Panel.

The Athlete explained he had moved from the West Coast to Ontario after his wife died of breast cancer in 2009. All his prescription medications were moved in the same box, including those belonging to his wife. Occasionally when he became short of medications he would use the medication in this box and therefore unwittingly contamination occurred of his medication with old prescribed Tamoxifen medication of his deceased wife.

The Panel found that Athlete acted negligently in storing, repackaging and reusing medicine containers with or without their contents (in this case Tamoxifen), particularly containers of drugs prescribed for another person. The Panel was not convinced that in this case the level of Tamoxifen detected is compatible with a simple contamination but as a residue of and ingestion of the substance.

Considering that the Athlete was seriously negligently, yet without evidence of intent or actual enhancement of performance exists, the WCF Case Hearing Panel decided to impose an 18 month period of ineligibility on the Athlete.

Hereafter in March 2012 the Athlete appealed the WCF decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.

Following assessment of the case the Panel concludes that the Athlete indeed committed an anti-doping rule violation. However the Panel deems that the sanction of 18 months is disproportionate and that a reduced sanction must be imposed.

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

1.) The appeal filed on 25 March 2012 by Mr. James P. (Jim) Armstrong against the decision issued on 6 March 2012 by the WCF under the provisions of the WCF Anti-Doping-Rules, is partially upheld.

2.) The decision issued on 6 March 2012 by the WCF Hearing Panel is set aside. A period of ineligibility of six (6) months commencing on 6 March 2012 is imposed on the Appellant.

3.) (…).

4.) (…).

5.) All other motions or prayers for relief submitted by the parties are dismissed.

The Royal Dutch Cycling Federation (Koninklijke Nederlandsche Wielren Unie, KNWU) has reported against this person for violating the Anti-Doping Rules of the ISR. In the A portion of the urine sample is concerned recombinant human erythropoietin (rhEPO) found. The doping was carried out of competition. The National Federation has suspended person immediately. Person has filed a statement in his defence and waived his right to be heard. Therefore, the case dealt with in writing.
Person is not in possession of a valid dispensation. In its defence, the person acknowledges that he committed the offense. Concerned also indicates that he is not seeking reduction of the standard sanction. He does not therefore rely on the absence of (significant amount of) fault or negligence. The Disciplinary Commission sees no reason to deviate from the standard penalty of exclusion for a period of two years for a first offense. The period of the provisional rules of order size KNWU is deducted. The costs associated with this case are charged question put.

Related case:
ISR 2011 KNWU Decision Disciplinary Committee 2011031 T
October 3, 2011

The Person didn't show after selection by the anti-doping authorities to supply a urine sample at a competition in Belgium.
The Royal Dutch Cycling Federation (Koninklijke Nederlandse Wielren Unie, KNWU) notified the person of the doping violation and ordered a provisional suspension. Person filed a statement in his defence and was heard for the Committee.

Person stated he dropped out during the competition, signed out to the officials, and went home. He wasn’t informed by the officials about a doping control nor was he invited for a doping control test due to the selection by the anti-doping authorities started when person already had left the competition.

The Anti Doping Authority stated for the committee that every competitor has to make sure about selection by the anti-doping authorities during competitions.

The committee concludes that person reasonably could not know or assume he was selected by the anti-doping authorities and upholds the decision of the Disciplinary Committee. Because of exceptional circumstances the Disciplinary Committee already had decided to reduce the ineligibility to 12 months, beginning on the date of his provisional suspension.

The Royal Dutch Cycling Federation (Koninklijke Nederlandsche Wielren Unie, KNWU) has reported a violating the Anti-Doping Rules of the ISR during a Mountainbike contest. In the A sample of the doping test the prohibited substance 17α-methyl-β-androstane-3α, 17β-diol (a metabolite of methyltestosterone) was found.

After this analysis is concerned with immediate effect provisionally suspended. This is confirmed by the B sample. Person has filed a defence and the case was orally treated.
The Disciplinary Committee decides that it Disciplinary and Doping Rules came into force on January 1, 2012, will apply in assessing the declaration.

During the drug testing has indicated the individual drugs Multivitamins Vitamin B, Vitamin C and Caffeine has been used. Shall be no dispensation for the banned substance in his body was found.

The defence is concerned, four observations. First person contests the jurisdiction of the CAS. According to the Disciplinary Committee is not relevant in this case. Secondly, the person concerned was detrimental to the 'new' rules to use. But the Disciplinary Committee is not substantiated. With respect to the third comment, relating to the role of DA in the phase prior to the declaration, notice the Disciplinary Commission that in the course of any irregularities and that no evidence from any person involved altering the investigation or subsequent proceedings by the DA.

Even with the fourth remark concerned, it relates to the opacity of the regulations, the Disciplinary Commission disagrees. Also asserts that no person doping violation has occurred. There is a false positive check result that is caused by deviations from the ISL and ISPPPI. But the Disciplinary Commission considers that no individual deviation from the ISL has shown. And on the basis of a previous decision, the Disciplinary Commission also rejected the last defence of the person concerned.

The Disciplinary Commission considers that the KNWU evidence of violation of the Anti-Doping Rules has delivered. A first offense is punishable with an ineligibility for a period of two years, unless the relevant conditions for the cancellation, reduction or extension of the penalty period, all of which has not happened. The provisional suspension is deducted. The case related costs will be borne by individual.

CAS 2010/A/2245 Andrey Plotniy v. International Tennis Federation (ITF)

Related case:

ITF 2010 ITF vs Andrei Plotniy
September 20, 2010

• Tennis
• Doping (carphedon)
• Applicable standard in respect of the definition of “No Significant Fault or Negligence”
• Additional sanction

1. Only where the departure of the athlete from the required conduct under the duty of utmost care was not significant, the sanctioning body may apply “No Significant Fault or Negligence” and depart from the standard sanction.

2. The Tennis Anti-Doping Programme envisages that any reduced sanction would run concurrently with the original sanction imposed, as any other interpretation of the rules could result in players having a lengthy sentence in effect reduced through breaching the sanction of ineligibility, in circumstances where they breached their sanction early in their period of ineligibility with No Significant Fault or Negligence, and therefore restarted a period of ineligibility now reduced by up to half.

On 9 March 2010 the Russian tennis player Andrey Plotniy admitted he had committed an anti-doping rule violation after his sample tested positive for the prohibited substance Fonturacetam (Carphedon). He signed an Acceptance of Sanction and a 15 month period of ineligibility was imposed, starting on 1 November 2009.

Hereafter in August 2010 the German Tennis Federation reported that the Athlete had participated in 5 tennis competitions in Germany. The Athlete acknowledged his participation in these 5 competitions and asserted that he was unaware he was ineligibile to participated in tennis competitions at a national level not hosted by the ITF or the WTA.

The ITF concluded that the Athlete failed to establish No Significant Fault of Negligence for breaching ineligibilty. Consequently the ITF decided on 20 September 2010 that the original 15 month period of ineligibility shall start again from the date of his last participation, i.e. 22 August 2010.

Hereafter the Athlete appealed the ITF Decision with the Court of Arbitration for Sport (CAS).

The Panel considered the particular circumstances of this case and establishes that the Athlete made, on his own admission, no enquiry into the nature and extent of his sanction other than asking his own representative. At the time he made that enquiry, he knew himself to be ineligible to play in international tournaments, and in the national Russian Championship.

The Panel accordingly upholds the ITF’s decision dated 20 September 2010 and dismisses the Appeal of the Athlete in its entirety. The present award is rendered by majority, pursuant to Article R59 of the Code.

Therefore the Court of Arbitration for Sport decides on 11 April 2011:

1.) The appeal filed on 7 October 2010 by Mr Andrey Plotniy is dismissed.

2.) The decision rendered by the ITF Anti-Doping Manager on 20 September 2010 is confirmed.

(…)

5.) All other prayers for relief are rejected.

CAS 2009/A/1898 World Anti-Doping Agency (WADA) v. International DanceSport Federation (IDSF) & Boris Maltsev & Zarina Shamsutdinova

• Dance sport
• Doping (refusal to submit to doping control)
• Applicability of the principle of equality of treatment between athletes
• Absence of justification for the refusal to submit to control
• Absence of mitigating factors for the otherwise applicable sanction

1. Neither the equality of treatment between elite athletes competing in different sports at a worldwide level, nor the rationale of anti-doping rules, allow to follow the reasoning according to which the level of awareness of competing athletes regarding applicable rules might be inferior in small federations with less means, which should lead to more indulgence when examining their required degree of diligence. Both the World Anti-Doping Programme and the rules of the federation make this clear and forbid doping. Indeed, the purpose of the World Anti-Doping Code is to protect the athletes’ fundamental right to participate in doping-free sport and thus promote health, fairness and equality for athletes worldwide and to ensure harmonized, coordinated and effective anti-doping programs at the international level with regard to detection, deterrence and prevention of doping.

2. According to the applicable rule, an athlete shall only be entitled to refuse to provide a blood or urine sample in circumstances where the “mandatory procedures and safeguards” set out in the regulations are not observed. The reference to mandatory procedures and safeguards must be understood as a reference to the rules and procedures that exist to enable doping controls to be organized in an efficient, orderly, safe and fair manner. In this respect, the absence of a representative of the national federation cannot be deemed a violation of a mandatory safeguard, as no rule exists that provides for such a presence. Likewise, the absence of a warning that doping control might occur cannot be considered a violation of any mandatory procedure or safeguard either. Finally, the federation’s rules neither have the purpose nor the effect of making the duty of submitting to a doping control subject to the signing of a consent form; the athletes acquire that duty by participating in the competition.

3. There is no necessary causal link between the actions of the various sport authorities which might not have properly implemented the anti-doping rules and the fault of the athletes which relieves the latter from their own responsibility. Presenting excuses after the facts cannot be considered as a mitigating factor of the violation consisting in the refusal to undergo the doping test. If no elements can be deemed mitigating factors, the athletes are deemed significantly negligent in refusing to undergo a test. As a result the sanction cannot be reduced and the ineligibility period to be applied is two years.

In December 2008 the Asian DanceSport Federation (ADSF) reported an anti-doping rule violation aginst the Kazakh dancers Boris Maltsev and Zarina Shamsutdinova for their refusal to submit to sample collection at the 2008 IDSF Asian Championships Latin on 7 December 2008. Consequently on 3 June 2009 the IDSF Disciplinary Council decided to sanction the Athletes for 1 year.

Hereafter in July 2009 the World Anti-Doping Agency (WADA) appealed the IDSF Decision with the Court of Arbitration for Sport (CAS). WADA requested to set aside the Appealed Decision and to impose a sanction of 2 years on the Athletes.

Following assessment of the case the Panel determines that:

• The Athletes' refusal to submit to a doping control is undisputed.
• They refused the test, although they were warned twice about the gravity and the consequences of such refusal.
• No “mandatory procedures and safeguards” protecting athletes have been violated in this case.
• There exists no justification for the refusal to submit to the control, with the consequence that the Athletes must be deemed to have committed an anti-doping rule violation.
• There are no elements, which can be deemed mitigating factors.
• The Athletes were significantly negligent in refusing to undergo the test.

Therefore the Court of Arbitration for Sport decides on 3 March 2010:

1.) The appeal of WADA against the decision of the IDSF Disciplinary Council, dated 3 June 2009, is declared admissible and upheld.

2.) The decision of the IDSF Disciplinary Council, dated 3 June 2009, in the matter of Boris Maltsev and Zarina Shamsutdinova is set aside.

3.) Boris Maltsev and Zarina Shamsutdinova are sanctioned with a two-year period of ineligibility starting on 7 December 2009, with the period of one year of ineligibility already served by the Athletes being credited against the total period of ineligibility to be served.

4.) All competitive results obtained by Boris Maltsev and Zarina Shamsutdinova from 7 December 2008 through the date of this award shall be disqualified with all of the resulting consequences including forfeiture of any medals, points and prizes.

(…)

7.) All other claims and prayers for relief are dismissed.

CAS 2002/A/370 Lazutina v/ IOC
CAS 2002/A/370 L. / International Olympic Committee (IOC)

Related cases:

• IOC 2002 IOC vs Larissa Lazutina
  February 24, 2002
• IOC 2002 IOC vs Olga Danilova
  February 24, 2002
• Swiss Federal Court 4P.267_2002 Larissa Lazutina & Olga Danilova vs IOC and FIS
• Swiss Federal Court 4P.268_2002 Larissa Lazutina & Olga Danilova vs IOC and FIS
• Swiss Federal Court 4P.269_2002 Larissa Lazutina & Olga Danilova vs IOC and FIS
• Swiss Federal Court 4P.270_2002 Larissa Lazutina & Olga Danilova vs IOC and FIS
  May 27, 2003

• Cross Country Skiing/Olympic Games
• Doping (darbepoetin)
• Reliability of the testing method

1. Although darbepoetin is not specifically listed as a prohibited substance in the Olympic Movement Anti-Doping Code (“OMAC”), it is an analogue or mimetic of erythropoietin which is recombinant EPO in that it is an artificial substance which is not naturally produced by the human body unlike natural EPO. Therefore it is a prohibited substance. In accordance with the OMAC, its use is permitted only to treat insulin-dependent diabetes and even then, only if written notification has been given prior to the particular competition by an endocrinologist or the team physician. In the present case no written notification has been given.

2. Contrary to the allegation that the methodology of testing for darbepoetin is experimental and not legally nor scientifically accepted, evidence was given as to the methodology and reliability of the combined blood and urine test. The existing test for EPO whether natural or recombinant can be used without modification to detect darbepoetin. On the basis of the existing evidence, the CAS considers that the methodology of testing for erythropoietin and darbepoetin is scientifically sound, and that the results produced by the tests are reliable.

Ms. Larissa Lazutina is a Russian Athlete competing in the 4x5 kilometer women’s relay cross-country skiing race ath the Salt Lake City 2002 Olympic Games.

In February 2002 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after her A and B samples tested positive for the prohibited substance Darbepoetin (dEPO)

The IOC Disciplinary Commission concluded that the Athlete had committed a doping offence. On the 24 February 2002 the IOC Executive Board accepted the conclusions and recommendations of the Disciplinary Commission. The Disciplinary commission disqualified the Athlete from the women’s 30 kilometre classical cross-country skiing race, ordered the withdrawal of her medal and diploma and ordered her exclusion from the Olympic Winter Games 2002.

As a result of the Athlete's violation the FIS decided on 3 June 2002 to impose a 2 year period of ineligibility on the Athlete.

Hereafter the Athlete filed several appeals against the imposed sanctions with the Court of Arbitration for Sport (CAS 2002/A/371 [IOC] and CAS 2002/A/398 [FIS]).

The issue in this appeal can be shortly stated. The Athlete  contends that the methodology of testing for darbepoeitin is experimental, and is neither legally nor scientifically accepted. In particular, she contends that it is not permissible to use the method of testing for erythropoietin in order to test for darbepoetin.

Furthermore, she contends that the test on the B sample was improperly carried out as the urine sample was poured from the sample bottle into a dirty, non-sterile container. There was, therefore, she submits, a danger of contamination.

Considering the evidence, the Panel has no hesitation in finding that the methodology of testing for erythropoietin and darbepoetin is scientifically sound, and that the results produced by the tests are reliable.

The Court of Arbitration for Sport decides on 29 November that:

1.) The appeal filed by Larissa Lazutina on 13th March 2002 is dismissed.

2.) The decision of the IOC Executive Board of 24th February 2002 is confirmed.

3. (...).

Anabolic androgenic steroids--use and correlates among gym users--an assessment study using questionnaires and observations at gyms in the Stockholm region / Håkan Leifman, Charlotta Rehnman, Erika Sjöblom, Stefan Holgersson. - (Environmetnal Reseach and Public Health 8 (2011) 7 (29 June); p. 2656-2674)

• PMID: 21845151
• PMCID: PMC3155322
• DOI: 10.3390/ijerph8072656

Abstract

The purpose of this study was to estimate the prevalence of anabolic androgenic steroid (AAS) use and offers to use among gym users in Stockholm County (Sweden), and to conduct a comparison of concordance in estimates of AAS and supplements at gyms between two data collection methods. A questionnaire was distributed to members at 36 training facilities and 1,752 gym users participated in the study. An observation study was conducted as covert participant observations at 64 gyms. According to the questionnaire, 3.9% of men reported life time use of AAS, 1.4% use during the past 12 months and 0.4% AAS use during past 30 days. Not only were there similar patterns found in the two methods, i.e., similar age and gender distributions for AAS use, but analyses of concordance showed that gyms with a higher prevalence of self-reported AAS-use and supplement use (questionnaire) showed a significantly higher proportion of observer-assessed AAS users. Analyses of individual predictors showed that AAS users were almost always young men, regular weight trainers and more often users of drugs and nutritional supplements. The higher prevalence of AAS use among gym users than in the general population makes the former an appropriate target group for AAS prevention. The connection between supplements, drugs and AAS use suggests that effective AAS prevention need to focus on several risk factors for AAS use. The clear resemblance in estimates between the observation and questionnaire data strengthen the credibility of the two methods.

Andreas Buttner and Detlef Thieme
D. Thieme and P. Hemmersbach (eds.), Doping in Sports,
Handbook of Experimental Pharmacology 195,
DOI 10.1007/978-3-540-79088-4_19, # Springer‐Verlag Berlin Heidelberg 2009

Abstract
Side effects of anabolic steroids with relevance in forensic medicine are mainly due to life-threatening health risks with potential fatal outcome and cases of uncertain limitations of criminal liability after steroid administration. Both problems are typically associated with long-term abuse and excessive overdose of anabolic steroids. Side effects may be due to direct genomic or nongenomic activities (myotrophic, hepatotoxic), can result from down-regulation of endogenous biosynthesis (antiandrogenic) or be indirect consequence of steroid biotransformation (estrogenic). Logically, there are no systematic clinical studies available and the number of causally determined fatalities is fairly limited. The following compilation reviews typical abundant observations in cases where nonnatural deaths (mostly liver failure and sudden cardiac death) were concurrent with steroid abuse. Moreover, frequent associations between structural characteristics and typical side effects are summarized.