CAS 2011/A/2336 WADA v. FCL & Margarita Mercado Villarreal

CAS 2011/A/2339 WADA v. FCL & Katerine Mercado Villarreal

Ms Margarita Mercado Villarreal and Ms Katerine Mercado Villarreal are two sisters of Columbian nationality who compete as weightlifters at a highly competitive level. They tested positive for 19-norandrosterone (Nandrolone) in an out-of-competition test performed in Cali on 19 October 2009.

Following a hearing on 11 June 2010 the Colombian Weightlifting Confederation (FCL) decided to impose a sanction of 1 year on the two Athletes including disqualification of their results.

Hereafter in January 2011 the World Anti-Doping Agency (WADA) appealed the FCL Decision with the Court of Arbitration for Sport (CAS). WADA requested to set aside the Appealed Decisions and to impose a sanction of 2 years on the Athletes.

WADA contended that the Athletes failed to demonstrate with corroborating evidence that there had been departures of the ISTI that could have caused the positive test results. Further the Athlete failed to explain the presence of the prohibited substance in their system.

Following assesment of the case the Panel determines:

• The presence of a prohibited substance had been established in the Athletes' samples and accordingly they committed an anti-doping rule violation.
• The Athletes failed to establish the existence of circumstances permitting the reduction or elimination of the sanction.
• The anti-doping tests performed by on the Weightlifters were properly canied out.
• The Athletes' allegations concerning the sample collection and storage procedures:
  • (i) are not relevant; and/or
  • (il) have not been proven on the balance of probability; and/or
  • (iii) could in no manner cause their adverse analytical flndings.

Therefore the Court of Arbitration for Sport (CAS) decides on 2 March 2012:

1.) The Appeal filed by the World Anti-Doping Agency is upheld.

2.) The decision rendered by the Disciplinary Commission of the Federación Colombiana de Levantamiento de Pesas further to a hearing on 11 October 2010 concerning Ms Margarita Mercado Villarreal (a minor) and Ms Katerine Mercado Villareal is set aside, except for the rulings related to (i) the "Liga de Levantamiento de Pesas de Bolivar" and (ii) the removal of results and return of trophies, medals and prices, which have not been appealed against.

3.) Ms Margarita Mercado Villarreal is declared ineligible for a period of two years, starting from the date of notification of this award. Any period of ineligibility that she has already served, as attested by the International Weightlifting Federation, shall be credited against the above mentioned period of two years of ineligibility.

4.) Ms Katerine Mercado Villarreal is declared ineligible for a period of two years, starting from the date of notification of this award. Any period of ineligibility that she has already served, as attested by the International Weightlifting Federation, shall be credited against the above mentioned period of two years of ineligibility.

5.) Ms Margarita Mercado Villarreal, Ms Katerine Mercado Villarreal and the Federación Colombiana de Levantamiento de Pesas shall bear the entire costs of the proceedings, to be determined and served on the parties by the CAS Court Office, for which they are jointly and severally liable.

6.) Ms Margarita Mercado Villaireal, Ms Katerine Mercado Villarreal and the Federación Colombiana de Levantamiento de Pesas are ordered to pay the total amount of CHF 1,000 (one thousand Swiss Francs), for which they are jointly and severally liable, to the World Anti-Doping Agency.

7.) All other requests, motions or players for relief are dismissed.

Author: Ano Lobb
World J Gastroenterol. 2010 October 14; 16(38): 4880–4882.
Published online 2010 October 14. doi: 10.3748/wjg.v16.i38.4880

Weight loss supplements often contain powerful pharmacoactive ingredients with the potential to cause harm. Trials used to determine product safety and effectiveness, meanwhile, tend to be small, of short duration, and frequently lack financial conflict of interest disclosures. These factors could conspire to place consumers at risk, especially when published research cited in advertising cloaks products with the suggestion that their safety and effectiveness have been proven by science. Examples of current and former weight loss products backed by potentially conflicted or low quality research include Metabolife-356, Hydroxycut, Xenadrine and LeptiCore. Published research, especially in the field of weight loss supplements, needs better conflict of interest disclosure, and regulators should consider how research findings are used in marketing claims.

The motives for doping drug use in nonprofessional drug use in nonprofessional athletes  and methods of prevention / Petar Mitić, Dragan Radovanović. - (Facta Universitatis - Physical Education and Sport 9 (2011) 11; p. 203-212)

Doping is commonly associated with proffesional sport. Unfortunately, doping is not only used by athletes competing ’for medals,’ it is also common in various recreational sports activities. Studies carried out in different countries reveal the necessity of preventive action and the reduction of the incidence of doping drug use in this group of athletes. The clear identification of the motives in nonprofessional athletes for using these dangerous substances is the core of the problem and the sole adequate basis fordeveloping operative preventive plans.

Results obtained from various relevant studies have been presented. They point out thatthe athlete’s morality, personality characteristics, reference groups and the individuals themselves play vital roles in the process of starting to use doping drugs. Based on these findings, authors propose a comprehensive plan for the prevention and reduction of theincidence for doping drug use among nonprofessional athletes. The plan is based on: informative-educative work on the effect of doping on health, optimal nutrition planning, supplementation planning, and individual training system planning, all in accordance with the personality features, sports discipline and goals that a recreational athlete sets for himself. It is also of vital importance to work on improving the psychosocialcharacteristics of an individual.

Incongruence in doping related attitudes, beliefs and opinions in the context of discordant behavioural data: in which measure do we trust? / Andrea Petróczi, Martina Uvacsek, Tamás Nepusz, Nawed Deshmukh, Iltaf Shah, Eugene V. Aidman, James Barker, Miklós Tóth, Declan P. Naughton. - (PLoS ONE 6 (2011) 4 (26 April); e18804) PLoS ONe 6 (2011) 4 (26 April); e18804; p. 1-10)

• PMID: 21541317
• PMCID: PMC3082532
• DOI: 10.1371/journal.pone.0018804

Abstract

Background: Social psychology research on doping and outcome based evaluation of primary anti-doping prevention and intervention programmes have been dominated by self-reports. Having confidence in the validity and reliability of such data is vital.

Methodology/principal findings: The sample of 82 athletes from 30 sports (52.4% female, mean age: 21.48±2.86 years) was split into quasi-experimental groups based on i) self-admitted previous experience with prohibited performance enhancing drugs (PED) and ii) the presence of at least one prohibited PED in hair covering up to 6 months prior to data collection. Participants responded to questionnaires assessing a range of social cognitive determinants of doping via self-reports; and completed a modified version of the Brief Implicit Association Test (BIAT) assessing implicit attitudes to doping relative to the acceptable nutritional supplements (NS). Social projection regarding NS was used as control. PEDs were detected in hair samples from 10 athletes (12% prevalence), none of whom admitted doping use. This group of 'deniers' was characterised by a dissociation between explicit (verbal declarations) and implicit (BIAT) responding, while convergence was observed in the 'clean' athlete group. This dissociation, if replicated, may act as a cognitive marker of the denier group, with promising applications of the combined explicit-implicit cognitive protocol as a proxy in lieu of biochemical detection methods in social science research. Overall, discrepancies in the relationship between declared doping-related opinion and implicit doping attitudes were observed between the groups, with control measures remaining unaffected. Questionnaire responses showed a pattern consistent with self-reported doping use.

Conclusions/significance: Following our preliminary work, this study provides further evidence that both self-reports on behaviour and social cognitive measures could be affected by some form of response bias. This can question the validity of self-reports, with reliability remaining unaffected. Triangulation of various assessment methods is recommended.

Mediating mechanisms in a program to reduce intentions to use anabolic steroids and improve exercise self-efficacy and dietary behavior / David P. MacKinnon, L. Goldberg, G.N. Clarke, D.L. Elliot, J. Cheong, A. Lapin, E.L. Moe, J.L. Krull. - (Prevention Science 2 (2001) 1 (March); p. 15-28)

• PMID: 11519372
• DOI: 10.1023/a:1010082828000

Abstract

This study investigated the mediating mechanisms responsible for the effects of a program designed to reduce intentions to use anabolic steroids, improve nutrition, and increase strength training self-efficacy. Fifteen of 31 high school football teams (N = 1,506 players at baseline) in Oregon and Washington were assigned to receive the intervention. The multicomponent program addressed the social influences promoting ergogenic drug use and engaging students in healthy nutrition and strength training alternative behaviors. Although the results differed across the three dependent variables, the program appeared to work by changing team norms. Unlike prevention of other drugs, changes in knowledge and perceived severity were mediators of program effects in this study.

Psychological drivers in doping: the life-cycle model of performance enhancement / Andrea Petróczi, Eugene Aidman. - (Substance Abuse Treatment, Prevention, and Policy 3 (2008); 7)

• PMID: 18331645
• PMCID: PMC2315642
• DOI: 10.1186/1747-597X-3-7

Abstract

Background: Performance enhancement (PE) is a natural and essential ingredient of competitive sport. Except for nutritional supplement contamination, accidental use of doping is highly unlikely. It requires deliberation, planning and commitment; and is influenced by a host of protective and risk factors.

Hypothesis: In the course of their career, athletes constantly set goals and make choices regarding the way these goals can be achieved. The cycle of choice - goal commitment - execution - feedback on goal attainment - goal evaluation/adjustment has numerous exit points, each providing an opportunity for behaviour change, which may or may not be related to the use of prohibited methods. The interplay between facilitating and inhibiting systemic and personality factors, constantly influenced by situational factors could result in an outcome vector of 'doping attitudes', which combines with subjective norms to influence intentions to choose prohibited PE methods. These influences also vary from one stage of athlete development to the next, making some athletes more vulnerable to engaging in doping practices than others, and more vulnerable at certain time periods - and not others.

Testing the hypothesis: Model-testing requires a series of carefully planned and coordinated studies. Correlational studies can establish relationships where the directionality is not-known or not important. Experimental studies with the manipulation of doping expectancies and risk factors can be used to demonstrate causality and evaluate potential intervention strategies. The final model can be tested via a behavioural simulation, with outcomes compared to those expected from literature precedence or used as a simulated computer game for empirical data collection.

Implications: A hypothesized life-cycle model of PE identifies vulnerability factors across the stages of athlete development with the view of informing the design of anti-doping assessment and intervention. The model suggests that, instead of focusing on the actual engagement in prohibited PE practices, deterrence strategies are likely to be more effective if they target the influencing factors at the appropriate stage and identify groups of athletes and their respective career stages, which pose particular risks of engagement in doping practices. This enables a more effective intervention approach by targeting specific risk factors and expectancies.

CAS 2011/A/2612 Liao Hui v. International Weightlifting Federation (IWF)

Related case:

Swiss Federal Court 4A_576_2012 Liao Hui vs IWF
February 28, 2013

• Weightlifting
• Doping (boldenone)
• Conditions for the admissibility of a request for declaratory relief
• Internal and external chain of custody according to the WADA Technical Document TD2009LCOC
• Compatibility of the standard sanction rule of an international federation with the WADC
• Legal relationship between an international federation and WADA or the IOC
• Principle of hierarchy of norms under Swiss law
• Special situation in a particular sport as “aggravating circumstance” according to the WADC

1. A request for declaratory relief is – in line with the Article 182 PILA - only admissible under two conditions. First, the purpose of the declaratory relief must be aimed at clarifying the (non-)existence of a legal relationship between the parties. Declaratory relief sought in relation to facts or general questions of law are, therefore, not admissible. In addition, the party requesting declaratory relief must show a special legal interest to obtain the respective declaration from the arbitral tribunal.

2. According to the WADA Technical Document TD2009LCOC there is an internal and an external chain of custody. The WADA Technical Document TD2009LCOC does not establish any prerequisites or conditions for the latter. The addressees of this document are the WADA-accredited laboratories, which are by their very nature not involved in the sample collection process and, therefore, cannot document the external chain of custody.

4. The wording of Art. 10.2 of the IWF Anti-Doping Policy (ADP) and Art. 10.2 of the World Anti-Doping Code (WADC) is different. A standard doping sanction of two (2) years is significantly different than a standard sanction of four (4) years. This is all the more true, since the requirements listed in the WADC are – in principle – not only to be construed as minimum standards but also as maximum standards. The four year standard sanction in the IWF ADP is, thus, a “substantive change”, which is not “mitigated” by a deviating standing practice of the IWF.

5. The legal relationships between an international federation and WADA or the IOC on the one hand are distinct from the contractual relationship between an athlete and an international federation on the other hand. The latter is solely governed by the federation’s regulations (including the documents referred therein) and subsidiarily by Swiss law. Whether or not the international federation is in breach towards third parties in respect of the way it enacted its anti-doping policy is, therefore, in principle of no avail for the legal relationship between the athlete and the federation, since the legal effects arising from the different contractual relationships are, in principle confined to the parties of that legal relationship. Hence, the WADC is – even if the relevant international federation is a signatory to the WADC - not a document that by its very nature is directly applicable between said federation and its affiliated athletes.

6. According to the principle of hierarchy of norms, and subject to well-defined exceptions, rules and resolutions enacted by an association must be in compliance with the highest regulatory framework, i.e. the statutes of the associations. In case of contradiction between lower ranking norms and the statutes it is the latter – subject to well-defined exceptions - that take precedence.

7. The comments to Art. 10.6 IWF ADP / WADC do not refer in the context of “aggravated circumstances” to the general circumstances and conditions in a particular sport or within a specific federation as such. The fact that some sports may have a more nuanced doping problem as others is, therefore, of no avail in the context of this provision. According to the rationale of the WADC, differences between various sports cannot command nor justify a different regime on sanctions.

In September 2010 the International Weightlifting Federation reported an anti-doping rule violation against the Athlete Liao Hui after his A and B samples tested positive for the prohibited substance Boldenone.

Consequently the IWF Doping Hearing Panel decided on 3 October 2011 to impose a 4 year period of ineligibility on the Athlete

Hereafter the Athlete appealed the IWF 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.

The Athlete made the following assertions:

• The chain of custody as of sample collection (i.e. in Beijing) until the time, the samples arrived at the Cologne laboratory is incomplete;
• There is no documentation accounting for the location or the condition of the sample between 2 und 9 September 2010 (transport from Beijing to Budapest; storage of sample at HUNADO);
• The AAF for the A and B samples are not established and the IRMS test results are not reliable, mainly because of lack of reproducibility and failure to properly identify the analytes of interest;
• The sanction imposed by the IWF Doping Hearing Panel violates the World Anti-Doping Code.

The IWF contended that the Athlete failed to establish that the Cologne laboratory did not conduct the analyses in accordance with the WADA International Standard for Laboratories (ISL). Furthermore, the IWF deemed that the sanction imposed on the Athlete is fair, proportionate and in line with the applicable regulation and principles of law.

Following assessment of the case the Panel determines:

• the Athlete committed an anti-doping rule violation (presence of Boldenone / Boldenone metabolites in his bodily specimen);
• the period of ineligibility to be imposed upon the Athlete is to be reduced from four (4) to two (2) years; and
• all other prayers for relief are rejected or dismissed.

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

1.) The appeal filed by Mr Liao Hui on 25 October 2011 is upheld insofar as the Appellant requests the Panel to set aside the decision rendered by the IWF Doping Hearing Panel and to declare that he shall be suspended for a period of two (2) years.

2.) The period of ineligibility imposed by the IWF Doping Hearing Panel on Mr Liao Hui is reduced from four (4) years ineligibility to two (2) years ineligibility.

3.) (…)

4.) (…)

5.) All other or further prayers of relief are dismissed.

CAS 2009/A/1914 World Anti-Doping Agency (WADA) v. International Federation of Bodybuilding & Fitness (IFBB) & Kelli Johnson

• Bodybuilding
• Doping (possession of prohibited substances)
• Applicable law
• Scope of the appeal
• Significant fault or negligence excluding a reduction of the sanction
• Admission of a doping offense as mitigating circumstances justifying a reduction of the sanction
• Credit for delays in the proceedings not attributable to the athlete

1. If the rules contained in the three different versions of a federation’s Anti-Doping Rules (ADR) for 2007, 2008, 2009 are in all material respects the same in respect of the anti-doping violations committed by an athlete, the findings of violations are not affected by the fact that a federation hearing body may have been having regard to the wrong edition of the ADR. The fact that the last edition of the ADR contain different provisions in respect of penalties is not material in considering the violations alleged. Unlike the substantive anti-doping rules, the new procedural rules adopted by the federation apply as of the day of their entry into force.

2. The matter before the CAS panel is an appeal against the decision of the federation’s hearing body which was dealing with a specific allegation and found specific facts. It is not possible for WADA to seek to bring into the appeal matters with which the athlete was never charged and to seek to base the introduction of these matters on a copy of a document which was not in existence at the time of the federation’s hearing, the provenance of which was not the subject of any evidence.

3. So far as the “no significant fault” provision is concerned, it is well established that to benefit from a reduction of the otherwise applicable sanction an athlete must establish that s/he did not know or suspect and could not reasonably have known or suspected, even with the exercise of the utmost caution, that s/he had used or been administered the prohibited substance. The burden on an athlete seeking to establish “no significant fault or negligence” is high. Athletes are notably responsible for the choice of their medical personnel. The failure for a doctor to check the prescribed substance does not exclude the personal responsibility of the athlete especially if no evidence establish that the latter had taken any steps by way of precaution.

4. An athlete’s “admissions” of a doping offence cannot be taken into account as basis for mitigating the applicable penalty when such admissions are made because of the findings of the offending products in the athlete’s possession by the national customs.

5. Under the IFBB ADR, for a first violation, possession of prohibited substances should be sanctioned by a period of two years. If there have been delays in the proceedings which cannot in any way be attributed to the athlete, fairness requires that not only should the athlete be given credit for the period of ineligibility already served but that the remaining period should be treated as commencing before the date on which the decision is published.

This arbitration concerns the penalty of 6 months ineligibility imposed on Ms Johnson by a decision of the IFBB Hearing Panel dated 7 December 2008 for her violation of the IFBB Anti-Doping Rules (IFBB ADR), i.e. possession of the prohibited substances Prasterone (Dehydroepiandrosterone, DHEA) and Testosterone.

Hereafter in July 2009 the World Anti-Doping Agency (WADA) appealed the IFBB decision of 7 December 2008 with the Court of Arbitration for Sport (CAS). The IFBB and the Athlete failed to respond in this appeal.

The CAS Panel observes that in first instance the IFBB hearing panel determined that the period should be reduced to six months, to run as to three months before the date of the IFBB decision and three months thereafter. The basis of that decision appears to have been

• (1) that Ms Johnson was guilty of no significant fault or negligence in committing the offence and
• (2) that she had admitted a doping offence without there being any other reliable evidence of a violation.

This would have entitled the IFBB hearing panel to reduce the period of ineligibility under rule 10.5.4 of the 2009 edition of the Rules if

• (a) the relevant rules were the 2009 edition of the Rules,
• (b) the admission was made before she had received first notice of the admitted violation and
• (c) at the time of the admission the admission was the only reliable evidence of the violation.

The Panel concludes that the IFBB hearing panel was not entitled to reduce the period of ineligibility and deems that the Appealed Decision of the IFBB hearing panel was flawed. Further the Panel determines that there had been delays in the proceedings not attributed to the Athlete.

Therefore the Court of Arbitration for Sport decides on 1 February 2010:

1.) The appeal of the World Anti-Doping Agency against the decision of the IFBB Hearing Panel rendered on 7 December 2008 is allowed.

2.) Ms Kelli Johnson is sanctioned with a two year period of ineligibility, the period of six months ineligibility which she has already served being credited against that period and the remaining period of 18 months should be treated as commencing six months before the date of this award.

3.) All competitive results obtained by Ms Kelli Johnson from 7 September 2008 to the date of this award shall be disqualified with the consequent forfeiture of any medals, points or prizes.

4.) (…).

5.) Any further claims for relief are dismissed.

CAS A4/2006 Australian Weightlifting Federation vs Camilla Fogagnolo

In January 2006 the Australian Weightlifting Federation (AWF) reported an anti-doping rule violation against the weightlifter Camilla Fogagnolo after her A and B samples tested positive for the prohibited substance Benzylpiperazine.

Following notification - without a provisional suspension - the case was referrred to the Oceania Registry Court of Arbitration for Sport (CAS).

The Athlete accepted the test results and denied the intentional use of the substance. She argued that she was tested before without issues, she had mentioned the supplements she used on the Doping Control Form and she had properly checked the safety of the products before using.

The Athlete stated that she had used a Fortius Synephrine product in order to reduce her body weight. She was not aware that this product contained the prohibited substance due to Benzylpiperazine was not listed as an ingredient on the lable of the bottle.

This product was recommended by another weightlifter and considered safe to use. Yet, the Athlete was later advised that other weightlifters also had tested positive after using this product.

In January 2006 Fortius Products confirmed that the batch in question used by the athletes was contaminated with Benzylpiperazine. On being asked their manufacturer and supplier of this product failed to provide an explanation about this contamination.

The AWF contended that the Athlete failed to demonstrate that she acted with No (Significant) Fault or Negligence. She failed to read the read the warnings on the website of the Australian Sports Drug Agency (ASDA) nor had checked properly her supplements before using the products.

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

Undisputed is that the product Fortius Synephrine was the source of the prohibited substance and that the violation was not intentional. Considering the Athlete's conduct the Arbitrator finds that she acted with Significant Fault or Negligence regarding the products she had used.

Therefore the Court of Arbitration for Sport decides on 22 February 2006 that:

1.) Camilla Fogagnolo has breached Article 5.1 of the Anti-Doping Policy of the Australian Weightlifting Federation and has thereby committed an Anti-Doping Rule Violation.

2.) Camilla Fogagnolo's individual results obtained in the Australian Weightlifting Championships held in Brisbane, Queensland in October 2005 are disqualified; accordingly Camilla Fogagnolo forfeits her second placing achieved at that Championship including all medals, points and prizes, pursuant to Article 13.1 of the Anti-Doping Policy of the Australian Weightlifting Federation.

3.) Camilla Fogagnolo is ineligible to compete during the period commencing on 3 February 2006 and expiring at midnight on 2 February 2008.

4.) Camilla Fogagnolo is required to pay the sum of $1000.00 in respect of costs to the Australian Weightlifting Federation.

CAS A3/2007 ASADA v/ Belinda Van Tienen

In October 2005 four Australian weightlifters tested positive for the prohibited substance Benzylpiperazine due to they had used the supplement Fortius Synephrine containing this banned substance.

Thereupon an investigation conducted by the Australian Sports Anti-Doping Authority (ASADA) established that the weightlifter Belinda Van Tienen was involved in the sale of this product. Furthermore reanalysis in the UCLA Laboratory of her test results revealed the presence of Benzylpiperazine.

Accordingly ASADA in November 2007 reported an anti-doping rule violation against the Athlete. Following notification the Athlete accepted a provisional suspension whereas the case was referred to the Oceania Registry Court of Arbitration for Sport (CAS).

The Athlete accepted the test results and denied the intentional use of the substance. She acknowledged that she had used and sold supplements and that she was not aware that any batches of Synephrine contained Benzylpiperazine contaminations.

Following assessment of the evidence the Sole Arbitrator determines that:

• The computer data produced by the analysis of the Athlete's A sample in June 2005 is evidence of substantial weight and probative value.
• ASADA has established that the Athlete had committed an anti-doping rule violation.
• The Athlete had used Synephrine from the same batch the other athletes had used.

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

1.) Belinda Van Tienen has breached Article 5 of the Anti-Doping Policy of the Australian Weightlifting Federation and has thereby committed an Anti-Doping Rule Viotation.

2.) Belinda Van Tienen's individual results obtained in the Mermet Cup competition or event held in the USA in June 2005 are disqualified; accordingly Belinda Van Tienen forfeits all
placings, medals, points and prizes obtained in that competition or event.

3.) Belinda Van Tienen is ineliglble to compete during the period commencing on 27 November 2006 and expiring at midnight on 26 November 2008.

4.) Save for the Court fees whlch have been paid by the Applicant each party shall contribute equally to the Court's costs. The final assessment of the arbitration costs will be served by the CAS Court Office after the communication of the present award.

5.) The Award be made public.