CAS 2007/A/1284 & CAS 2007/A/1308 World Anti-Doping Agency (WADA) v. Federación Colombiana de Natación (FECNA) & Lina Maria Prieto

• Aquatics (swimming)
• Doping (norandrosterone; testosterone)
• Direct application of the rules of an International Federation to athletes
• Appealable decision before the CAS
• Applicable law by tacit agreement of the parties
• Condition for the admissibility of the appeal
• Consequences of an IF’s delay to communicate a decision to WADA
• Duty of the athlete to ensure that no prohibited substance enters his/her body

1. Provided that a National Federation is subject to the rules/regulations of an International Federation, such regulations and in particular the doping control rules can be deemed directly applicable to athletes. This may be either through an agreement/license or through the accreditation for a specific competition, or through a chain of references to the International Federation rules in by-laws or other regulations. This kind of factual assumption - based on experience and the fact that competitors generally submit themselves to all applicable regulations of the relevant competition (including doping rules) by their participation in the competition - has already been confirmed by CAS precedents.

2. The concept of an appealable decision (including an appeal against the failure to make a decision) has been defined in the well-established case law of the CAS. In this respect, the form of the communication has no relevance to determine whether there exists a decision or not; furthermore for a communication to be a decision, the communication must contain a ruling, whereby the body issuing the decision intends to affect the legal situation of the addressee of the decision or other parties. Neither the lack of knowledge of the form in which the official decision has been rendered nor the fact that a formal (written) decision with reasons has not yet been handed in, changes this in any way.

3. The election of governing law by tacit agreement is possible. For instance, by their behaviour, the parties could have clearly given their assent to the application of a specific law. Nevertheless, to admit this, it must undoubtedly emerge through the parties’ conclusive acts, that they agreed on the applicable law when they entered into the disputed contractual relationship.

4. In cases where a provision refers to the “receipt of the decision” for defining the time limit of the appeal (in contrast to the term “notification/notice of the decision”), this must be interpreted in a sense of a mere and common “time limit provision”. In no way does it indicate a requirement of admissibility to the effect that a party entitled to appeal cannot lodge an appeal before the actual receipt of the relevant formal decision. Rather, if there are no doubts as regards the existence of a decision, the term “receipt” has to be interpreted in a way that the “dies a quo” of the time limit is at least – as “a minus” of a receipt – the notice of the decision.

5. A delay of an International Federation to pass to WADA the information of the existence of the decision cannot be held against WADA. Should it be otherwise, it would imply for WADA to intervene in national cases and take measures or make inquiries, which obviously fall into the competence of the National or the International Federations.

6. It is each athlete’s personal duty to ensure that no prohibited substance enters his/her body. For an athlete, to allege that he/she made a few researches on the internet before he/she ingested nutritional supplements allegedly containing the prohibited substance is not enough to meet the standard of care expected of a top-level athlete, i.e. obtain assurances from his/her physician, pharmacist or team doctor that the supplements do not contain a prohibited substance.

In May 2006 the Colombian Swimming Federation (FECNA) reported an anti-doping rule violation against the swimmer Lina Maria Prieto after she tested positive for the prohibited substances 19-norandrosterone (Nandrolone) and with a T/E ratio above the WADA threshold. Consequently the FECNA Disciplinary Committee decides to impose a 1 year period of ineligibility on the Athlete.

Following deliberations between FINA and FECNA the World Anti-Doping Agency (WADA) appealed in April 2007 the FECNA 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 inelibility on the Athlete. WADA contended that the Athlete had committed an anti-doping rule violation and failed to explain how she tested positive.

In view of the evidence the Sole Arbitrator has no reason to put into question the quality and the results of the sample analysis conducted by the WADA-accredited laboratory. Ms Lina Maria Prieto must be considered as having committed a doping offence involving a prohibited substance governed by the sanctions in article DC 10 of the FINA Doping Control Rules and must take responsibility for it.

The Sole Arbitrator deems that Ms Lina Maria Prieto was unable to establish how the prohibited substance entered her system. Hence, elimination or reduction of the period of ineligibility based on exceptional circumstances cannot be applied and a minimum sanction of 2 years (for a first violation) must be imposed according to the rules in force.

Therefore the Court of Arbitration for Sport decides on 8 July 2008:

1.) The appeals filed by the World Anti-Doping Agency in the present matter are partially upheld.

2.) The appealed decision of the FECNA in the present matter is set aside.

3.) Ms Lina Maria Prieto is guilty of an Anti-Doping Rule violation committed during the Campeonato Internacional Ciudad De Cali, which took place between 7 and 9 April 2006 in Cali, Colombia.

4.) Ms Lina Maria Prieto shall be declared ineligible for two years. The period of ineligibility to be imposed upon her shall commence on 18 May 2006.

5.) Ms Lina Maria Prieto’s results obtained during the 2006 Campeonato Internacional Ciudad De Cali and or/during the above-mentioned period of ineligibility, her eventual medals, her points and prizes are forfeited.

(…)

9. All other motions or prayers for relief are dismissed.

Facts
The Royal Netherlands Power Sport and Fitness Federation (Koninklijke Nederlandse Krachtsport en Fitnessfederatie, KNKF) has reported an anti doping rule violation against the athlete. The athlete had provided a sample for doping control purposes during a match in 2013. Analysis of the sample showed the presence of a metabolite of stanozolol and a metabolite of cannabis. Stanozolol and cannabis is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list and cannabis is regarded as a specified substance.

History
The athlete didn't provide any information about how the prohibited substances had entered his body. The concentration of cannabis was below the threshold value, as determined with immediate effect on May 11, 2013 (150ng/ml). Therefore this wasn't considered as a violation.

Decision
1. The sanction is a period of ineligibility of two years in which the athlete can't take part in competition or manifestations organized or authorized by the KNKF.
2. The administrative costs has to be borne by the athlete.

TAS 2009/A/1873 WADA c/ Federation Portugese de Cyclisme (UVP-FPC) et M. João Paulo da Costa Cabreira

CAS 2009/A/1873 WADA vs FPC & João Paulo da Costa Cabreira

In May 2008 the Portuguese Police conducted criminal investigations against the cycling team LA-MSS. As part of their investigations the Athlete João Paulo da Costa Cabreira and other team members provided a sample for doping control. Thereupon in August 2008 the Portuguese Cycling Federation (FPC) reported an anti-doping rule violation against the Athlete for tampering with any part of the doping control.

Consequently on 24 February 2009 the FPC Disciplinary Council decided to sanction the Athlete for 2 years. Yet, following the Athlete's appeal the FPC Judicial Council decided on 6 May 2009 to set aside the decision of 24 February 2009 and to acquit the Athlete.

Hereafter WADA appealed the FPC Judicial Council decision of 6 May 2009 with the Court of Arbitration for Sport (CAS). WADA requested the CAS Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

The Athlete denied the possession and use of doping and argued that he was tested before without any issues. He disputed the reliability of the test result and asserted that there had been departures during the sample collection and the chain of custody.

Further the Athlete complained that he his reputation was damaged following the negative publicity whereas the search of his car and house had not revealed possession of prohibited substances.

Based on the evidence and statements made by expert witnesses the Panel concludes that the WADA Cologne Laboratory has established that it had applied a valid method to analyze the sample of the Athlete. The Panel determines that the sample showed that the Athlete intentionally had used the Bacillolysing powder which has the ability to degrade the prohibited substance EPO.

Therefore the Court of Arbitration for Sport decides on 19 April 2010 to annul the Appealed Decision of 6 May 2009 and to impose a 2 year period of ineligibility on the Athlete, starting on 24 February 2009.

CAS 2009/A/1802 World Anti-Doping Agency (WADA) v. Comitato Olimpico Nazionale Italiano (CONI) & Elena Perotto

• Cycling
• Doping (19-norandrosterone; 19-noretiocholanolone)
• Presence of two forbidden substances
• Distinction between “ineligibility” and “disqualification” as regards sanction
• Duration of the sanction

1. The established presence of two forbidden substances in the bodily sample of an athlete, namely 19-norandrosterone and 19-noretiocholanolone which are endogenous anabolic androgenic steroids, constitutes an anti-doping rule violation under the World Anti-Doping Code which applies directly under CONI Sports Anti-Doping Rules for any athlete not under the benefit of any Therapeutic Use Exemption.

2. Under constant CAS jurisprudence relating to CONI matters, in a case where an athlete is not or not anymore a “soggetto tesserato”, that is a “licensed member”, no other sanction is possible than a sanction of “inibizione” or “ineligibility”. CONI and any sport federation have the power to keep out of their activities athletes, doctors, coaches, and any other individual that has proven to have committed a serious misconduct and, lacking any affiliation with CONI or with a relevant sport federation, cannot be disqualified.

3. Under the applicable regulations, the period of “inibizione” or ineligibility for a first offence of presence of a prohibited substance in an athlete’s sample is a minimum of two years since the athlete has no given any legitimate reason for a reduction of the otherwise applicable period of ineligibility. In this respect, an athlete cannot benefit from any reduction of the otherwise applicable sanction if he or she did not prove by a balance of probability, how the prohibited substance entered his/her body.

In December 2008 an anti-doping rule violation was reported against the Italian amateur cyclist Elena Perotto (45) after her sample tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

Consequently on 26 January 2009 the National Anti-Doping Tribunal, Tribunale Nazionale Antidoping (TNA), decided to impose a 1 year period of inelgihibility on the Athlete based on No Significant Fault or Negligence.

Hereafter in March 2009 the World Anti-Doping Agency (WADA) appealed the TNA Decision 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.

WADA contended that the Athlete failed to establish how the prohibited substances had entered her system. She also failed to demonstrate that she acted with No Significant Fault or Negligence.

The Panel finds that the presence of prohibited substances has been established in the Athlete's sample and accordingly that she had committed an anti-doping rule violation.

In view of the evidence the Panel determines that under the applicable Rules the amateur cyclist is not a licensed athlete. Further the Panel deems that she failed to establish how the substances had entered her system.

The Panel finds that the Athlete only presented hypotheses, but witheld information which could amount to adducting the necessary evidence. Finally the Panel deems that there are no grounds that the Athlete acted with No Significant Fault or Negligence.

Therefore the Court of Arbitration for Sport decides on 28 August 2009:

1.) The appeal of WADA against the decision of the TNA of CONI dated 26 January 2009 is declared admissible and partly upheld.

2.) The Panel imposes a period of two year ineligibility (“inibizione”), which shall start on 26 January 2009.

(…)

5.) All other motions or prayers for relief are dismissed.

TAS 2008/O/1643 Vladimir Gusev c/ Olympus sarl

CAS 2008/O/1643 Vladimir Gusev vs Olympus Sarl

Related cases:

• Swiss Federal Court 4A_352/2009
  October 13, 2009
• Swiss Federal Court 4A_368/2009 Vladimir Gusev vs Olympus Sarl
  October 13, 2009
  
  

The case involved a Russian racing cyclist, Vladimir Gusev and a Belgian Company Olympus Sarl. Olympus hired Gusev for two years on 15 November 2007 and the contract was governed by Swiss law. On 23 July 2008, Olympus Sarl terminated the contract, alleging that a medical report seriously suggested that the cyclist had used exogenous EPO.

Hereafter the Athlete Gusev opened arbitration proceedings with the Court of Arbitration for Sport (CAS). The Athlete asserted that Olympus Sarl had breached his employment contract and he requested for damages.

In this case the Panel assessed the stipulations in the Athlete's employment contract and the events that resulted in the termination of this contract. The Panel established that following the medical report about the suspicious test results the Kreischa Laboratory had recommended to subject the Athlete to further testings in order to determine that the Athlete indeed had used a prohibited substance.

Instead Olympus Sarl decided to terminate the Athlete's contract immediately. The Panel concludes that Olympus Sarl was not entitled to terminate the Athlete's employment contract with immediate effect in July 2008.

Consequently on 15 June 2009 the Panel decides in favour of the Athlete and ordered Olympus to pay damages. Thereupon Olympus Sarl's attempt to appeal this case with the Swiss Federal Court was dismissed in October 2009.

TAS 2008/A/1698 Riccardo Ricco c. CONI

CAS 2008/A/1698 Riccardo Ricco vs CONI

In July 2008 the French Anti-Doping Agency (AFLD) has reported an anti-doping rule violation against the Italian cyclist Riccardo Ricco after his A and B samples tested positive for the prohibited substance methoxy polyethylene glycol-epoetin beta (CERA).

In first instance the Athlete admitted the violation and stated that the substance was administered in Italy before his participation to the Tour de France.
As substantial assistance the Athele testified about the doping involvement of dr. Santuccione and other Athletes.

On 2 October 2008 the Tribunale Nazionale Antidoping del CONI (TNA), the CONI National Anti-Doping Tribunal, decided to impose a 2 year period of ineligibility on the Athlete.

Hereafter in November 2008 the Athlete appealed the TNA Decision with the Court of Arbitration for Sport (CAS).The Athlete requested to annul the Appealed Decision and for a reduced sanction.

The Sole Arbitrator assessed the Athlete’s violation and his substantial assistance and decides on 17 March 2009:

1.) The appeal filed by Riccardo Ricco against the CONI TNA decision of 2 October 2008 is partially accepted.

2.) The CONI TNA of 2 October 2008 is partially reformed.

3.) The Athlete Riccardo Ricco is suspended from all sports activity for a periode of 20 (Twenty) months. This period runs from 18 July 2008.

4.) Any other claim made by the parties shall be rejected.

5.) (…)

TAS 2008/A/1612 M, Rasmussen c/ FMC

CAS 2008/A/1612 Michael Rasmussen c/ FMC

Related cases:

• Dutch District Court 2008 Michael Rasmussen vs RABO Wielerploegen
  July 2, 2008
• Dutch Court of Appeal 2012 Michael Rasmussen vs RABO Wielerploegen
  June 19, 2012
• Dutch Court of Appeal 2013 Michael Rasmussen vs RABO Wielerploegen
  June 25, 2013

On 30 June 2008 the Fédération Monégasque de Cyclisme (FMC) decided to impose a 2 year period of ineligibility on the cyclist Michael Rasmussen for multiple anti-doping rule violations he committed:

• 3 warnings for his whereabouts filing failures within a period of 18 months between May 2007 and July 2008;
• 1 warning for filing false whereabouts for the period April-June 2007.

Hereafter in July 2008 the Athlete appealed the FMC Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to annul the Appealed Decision and to impose a reduced sanction.

In the matter of his 1st and 3rd warning the Athlete disputed the competence of Anti-Doping Denmark (ADD) to conduct out-of-competition testing in April and in June 2007. Regarding the second warning the Athlete argued that he timely had submitted valid whereabouts information to the UCI.

Further the Athlete disputed the validity of the 4th warning because this was issued by the UCI only following his admission in November 2007, during an anti-doping investigation, that he had provided falsified whereabouts information.

The Panel established that the Athlete was included in the ADD testing pool and accordingly that the ADD had authority to submit the Athlete to sample collection. The Panel determines that the 2nd warning was valid due to the Athlete had anyhow not submitted timely his whereabouts to the UCI.

The Panel deems that UCI's 4th warning was also valid because the Athlete knowingly had provided false whereabouts information. As a result the Athlete had tampered with any part of the doping control.

Therefore the Court of Arbitration for Sport decides on 22 January 2009 to uphold the Appealed Decision of 30 June 2008 and rules that there are no grounds for a reduced sanction.

• CAS 2008/A/1591 Australian Sports Anti-Doping Authority (ASADA) v. Nathan O’Neill
• CAS 2008/A/1592 World Anti-Doping Agency (WADA) v. Nathan O’Neill, Cycling Australia (CA) & ASADA
• CAS 2008/A/1616 Union Cycliste Internationale (UCI) v. Nathan O’Neill
  
  

• Cycling
• Doping (phentermine)
• Applicable law on a subsidiary basis
• Clearance time, detection time and standard of care expected from an elite athlete
• Out-of-competition ingestion of a prohibited substance and no significant fault or negligence

1. So long as the sample testing of the athlete was conducted in an international event and, as the national federation is a member of the international federation (IF), the national federation is bound by the provisions of the IF’s anti-doping regulations, stating that in-competition, international events shall be governed by its anti-doping regulations “exclusively”. In such cases, the law of the country in which the body which has issued the challenged decision has its seat may be applied on a subsidiary basis, and Swiss law may also be additionally applied, particularly in reference to the interpretation and application of the rules of the IF, so long as the IF has its seat in Switzerland.

2. Even in a circumstance where the clearance time of a prohibited substance is longer than the detection time, it remains the responsibility of the athlete, at the time of competition, to ensure the prohibited substance has cleared from his/her body. When an athlete takes a substance which is prohibited in-competition, s/he has a responsibility to ensure, under the standard of care expected from an elite athlete, that at the time of competition, the substance has cleared from his/her system.

3. An athlete that deliberately ingested a prohibited substance has taken a very high risk and the fact that the athlete used this substance out-of-competition cannot constitute the “exceptional” circumstances which could justify a “no significant fault or negligence” finding and thereby give the athlete the benefit of a reduced sanction. Athletes who have used a prohibited substance out-of-competition have a personal duty to ensure a substance prohibited for in-competition is not found in his/her system on the occasion of an in-competition sample collection testing.

On 13 June 2008 the CAS Oceania registry decided in first instance to impose a 15 month period of ineligibility on the Australian cyclist Nathan O'Neill after he tested positive for the prohibited substance Phentermine.

Hereafter ASADA, UCI and WADA appealed this Decision with the Court of Arbitration for Sport (CAS). The Parties requested to set aside the Appealed Decision and to impose a more severe period of ineligibility on the Athlete.

The three parties deemed that the Athlete had committed an anti-doping rule violation. They contended that the Arbitrator was in error in then finding that the Athlete had established No Significant Fault or Negligence for a reduced 15 month period of ineligibility. The Athlete's evidence was self serving, not corroborated and revealed he did not meet teh required standard of care for an elite athlete.

In view of the evidence the Panel finds that the presence of the prohibited substance Phentermine has been established in the Athlete's sample and accordingly that he committed an anti-doping rule violation.

The Panel determines that the Athlete deliberately had ingested a prohibited substance and concludes that the Arbitrator in the Award at first instance was in error in the application of a reduced sanction. The Panel finds there was a significant fault and negligence on the part of the Athlete in ingesting the Phentermine before competition and competing while the substance remained in his system.

Therefore the Court of Arbitration for Sport decides on 16 January 2019:

1.) In matter No. CAS 2008/A/1591 & 1592 & 1616, the appeals are upheld.

2.) The decision of the CAS at first instance dated 13 June 2008 is set aside.

3.) The period of ineligibility of Nathan O’Neill shall be two years from 13 June 2008.

(…).

TAS 2008/A/1587 Luca Ascani c. UPA-CONI & FCI
CAS 2008/A/1587 Luca Ascani vs CONI & FCI

In August 2007 the Italian Cycling Federation (FCI) reported an anti-doping rule violation against the cyclist Luca Ascani after he tested positive for the prohibited substance Recombinant Erythropoietin (rhEPO).

Consequently on 9 May 2008 the CONI Giudice di Ultima Instanza in Materia di Doping (the Anti-Doping Supreme Court) decided to impose a 2 year period of ineligibility on the Athlete.

Hereafter in June 2008 the Athlete appealed the CONI decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decison and to eliminate or reduce the imposed sanction.

The Athlete claimed that the delays in the proceedings and his right to be heard were violated. He also asserted that several irregularities that had occurred during the Doping Control and during the analysis in the Rome Laboratory would invalidate the test results.

The Panel assessed and adresses the issues raised by the Athlete and determines that:

• The delays in the proceedings were not unreasonable whereas some of the delays were attributed to the Athlete.
• The Athlete had confirmed at the end of the hearing that he had received the opportunity to present his defence.
• No violations have been established during the sample collection procedure.
• No departures of the ISL have been established in the Rome Laboratory that could invalidate the test results.

Accordingly the Panel finds that the presence of the prohibited substance rhEPO has been established in the Athlete's samples and that he committed an anti-doping rule violation.

Therefore the Court of Arbitration for Sport decides on 9 February 2009 to partially dismiss the Athlete's appeal and to uphold the Appealed Decision for the imposititon of a sanction of 2 years.

The Panel only has reformed the commencement of the ineligibility period and set on the date of the sample collection, i.e. on 4 August 2007.

CAS 2008/A/1555 UCI vs Andrey Kashechkin & KCF
CAS 2009/A/1779 Andrey Kashechkin vs Kazakhstan Cycling Federation (KCF) & Union Cycliste Internationale (UCI)

TAS 2008/A/1555 UCI v/ A. Kashechkin & Kazakhstan Cycling Federation (CFRK)
TAS 2009/A/1779 Andrey Kashechkin c/Kazakhstan Cycling Federation (CFRK & Union Cycliste Internationale (UCI)

In August 2007 the International Cycling Union (UCI) reported an anti-doping rule violation against the Kazakh cyclist Andrey Kashechkin after his A and B samples showed that he had used the prohibited method of blood doping.

Following deliberations with the UCI the Disciplinary Commission of the Kazakhstan Cycling Federation (KCF) consequently decided on 25 December 2008 to impose a 2 year period of ineligibility on the Athlete.

Hereafter in January 2009 the Athlete appealed the KCF decision with the Court of Arbitration for Sport (CAS). Previously in May 2008 the UCI had filed an appeal with CAS in order to ensure that the KCF would open disciplinary proceedings against the Athlete.

The UCI requested the Panel to dismiss the Athlete's appeal and to confirm the Appealed Decision. By contrast the Athlete requested to set aside the Appealed Decision, to impose no sanction and to approve his participation in any cycling competition.

The Athlete alleged that in first instance his right to be heard was violated nor was he allowed to file a statement in his defence. Further he disputed the validity of the test results due to there had been several departures of the Rules during the blood sample collection and the transport to the Lausanne Laboratory.

Preliminary the Panel determined that both appeals filed by the UCI and the Athlete have been ordered to be consolidated in one procedure. The UCI appeal is admissible and CAS has jurisdiction to review the Athlete's case.

Moreover the Panel deems that the previous KCF decision in question of 8 April 2008 had been superseded by the Appealed Decision of 25 December 2008 based on new facts after the KCF had received the Athlete's file.

Following assessment of the Athlete's arguments the Panel determines:

• His argument about the lack of proper notification of the Appealed Decision is dismissed.
• Dismissed is the argument that his right to be heard was violated.
• The argument about the alleged conspiracy during to blood sample collection was withdrawn by the Athlete.
• During the blood sample collection the Athlete raised no objections nor did he demonstrate with any evidence the alleged inconsistencies that had been occurred.
• There is no evidence that the blood samples were effected during transport to the Lausanne Laboratory.
• There is no evidence that the testing method and testing results were invalid.

As a result the Panel concludes that the Lausanne lab has established that the Athlete had used the prohibited method of blood doping and accordingly that he had committed an anti-doping rule violation.

Therefore the Court of Arbitration for sport decides on 6 August 2009:

1) CAS doesn't need to rule on the appeal of the UCI's against the decision of April 8, 2008 by Kazakhstan Cycling Federation (KCF).

2.) The appeal filed January 29, 2009 by Andrey Kashechkin against the decision of 25 December 2008 of the Anti-Doping Commission of the Kazakhstan Cycling Federation (KCF) is dismissed.

3.) The Appealed Decision of 25 December 2008 of the Anti-Doping Commission of the Kazakhstan Cycling Federation (KCF) is confirmed.

4.) Andrey Kashechkin is ordered to pay the UCI CHF 1,000 for the immaterial costs by the Anti-Doping Commission of the UCI.

5.) The Kazakhstan Cycling Federation (KCF) is ordered to reimburse UCI the sum of CHF 2,000 (two thousand Swiss francs) in respect of costs, the registry fees of CHF 500 (five hundred Swiss francs) paid by Andrey Kashechkin and by the UCI on the filing of their appeal, which remains with CAS.

6.) All other motions or prayers for relief are dismissed.