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CAS 2010_A_2107 Flavia Oliveira vs USAD
December 6, 2010

In September 2009 the United States Anti-Doping Agency (USADA) reported an anti-doping rule violation against the cyclist Flavia Oliveira after her sample tested positive for the prohibited substance Oxilofrine (Methylsynephrine).

The Athlete admitted the violation and denied the intentional use of the substance. She argued that she was unaware that the supplement Hyperdrive 3.0+ contained a prohibited substance. Because she acted with a low degree of fault she requested for a reduced sanction.

The Sole Arbitrator accepts that the anti-doping rule violation was not intentional and rules that there were insufficient grounds for a reduced sanction.

Therefore the American Arbitration Association (AAA) decided on 6 April 2010 to impose a 2 year period of ineligibility on the Athlete, staring on the date of the sample collection, i.e. on 19 June 2009.

USADA seeks a lifetime period of ineligibility of cyclist Kirk O’Bee second anti-doping violation based on his alleged use, possession, trafficking or attempted trafficking, and administration or attempted administration of prohibited substances, including recombinant human erythropoietin (rhEPO), testosterone, and human growth hormone (“hgh”).
USADA also seeks disqualification of his cycling competition results from July 15, 2003 or when its non-analytical positive evidence establish his committed second doping violation, which USADA contends occurred prior to his May 20, 2009 positive test for rhEPO.
Respondent violated Article 21.2 of the International Cycling Union Anti-Doping Rules (“UCI ADR”) and Article 2.2 of the World Anti-Doping Code.
Respondent claims the appropriate sanction is an eight-year period of ineligibility and no invalidation of the cycling results prior to May 12, 2010.
The panel has jurisdiction over the doping dispute pursuant to to the Ted Stevens Olympic and Amateur Sports Act, 36 U.S.C. §220501 because this is a controversy involving Respondent’ s opportunity to participate in national and international competition representing the United States.
Trafficking was proved by examining respondent’s electronic mail and computer.
Decision and award: the respondent will receive a lifetime period of ineligibility from the date of the award, including ineligibility from participating in and having access to the training facilities of the United States Olympic Committee Training Centers or others programs and activities of the USOC including, but not limited to, any grants, awards or employment.

Respondent, a 27 year old world-class hammer thrower who tested positive in an out-of-competition urine sample test for hydrochlorothiazide and chlorothiazide which are used as Prohiblted Substances in the class of Diuretics and Other Masking Agents. This is a first offense for the athlete. Since 2005, Ms. Cosby has been in USADA' s Registered testing program, which means she has long been familiar with doping control testing.
Facing a suspension for 2 years she asks for a hearing. The key provision at issue in this case is as follows: World Anti-Doping Code 2009 10.4 Elimination or Reduction of Ineligibility for Specified Substances under Specific Circumstances. The positive drug test is related to a water pil (HCTZ) she took, a day before her drug test. She took this medecine because she was unable to urinate. Her condition is labeled as acute renal failure and in her family there is a history of high bloodpressure. Also her history of depression is regarded.
The Panel, having reviewed all the cases cited by the parties and having considered the life of this young athlete and her hopes for a future is of opinion that she should be suspended for four months and that the time should run from the date of her voluntary suspension which is September 21, 2009.

Respondent failed to submit to sample collection as required, during cyclocross World Cup event in Koksijde, Belgium on November 29, 2008.
Respondent's claims compelling justifïcation. Due to flu-like symptoms, a concussion and other injuries forced him to abandon the event, unable to attend the sample gathering.
Decision and award: Respondent had not committed an anti-doping violation under the UCI rules. Respondent was able to demonstrate a compelling justification for his failure to submit sample collection at the event.

Val Barnwell is a 52-year old athlete with an accomplished career in track (and field) events. He has participated in multiple 100 m and 200 m events. At the 2008 World Masters Indoors Championship, het set the Men’s 50 world record in the 60m dash. He participated in the 2009 World Masters as a member of the USA team, in which he won gold medals in the M50 100 m, and 200 m.

The Respondent, gave a urine sample on August 3. 2009, as part of the USADA In-Competition testing program at the World Masters Athletics Championships in Lahti, Finland. The Respondent later won gold medals in the 4 x 100 relay and the 4 x 400 relay.
The Helsinki Laboratory determined through carbon isotope ration (CIR) analysis that the sample contained values consistent with the administration of a synthetic anabolic androgenic steroid (androstendione) in the A bottle.
The WADA-accredited Cologne Laboratory determined through CIR analysis that the sample contained values consistent with the administration of a synthetic anabolic androgenic steroid (androstendione) in both the A and B bottles.

After a hearing the Panel provisionally suspended the Respondent effective December 11, 2009. The period of ineligibility will be a maximum of two (2) years, unless aggravating circumstance are established, in which case the maximum period of ineligibility will be four (4) years.

The hearing was held on February 25, 2010.
the Respondent failed to establish any "exceptional circumstances" that would entitle him to a reduction in sanctions since he admitted that he did not check the ingredients on the supplements that he took. that he had not read the lAAF ADRs, and that he did not take responsibility for what went into his body, exclaiming that the
statement regarding responsibility for what goes in an athlete's body does not belong due to the type of meet he was participating in at the World Masters. Instead, he called that requirement an "insult" since athletes participate in the events "to have fun".
The Respondent did not meet his burden of proof. He failed to prove how the banned substance got into his system, a precondition to qualify for any reduction in sanctions.

USADA did not meet its burden of proving that there were "aggravating circumstances'' present under the evidence which would justify the imposition of a period of ineligibility greater than the Standard sanction. lAAF ADR 40.6. USADA was required to bear the burden of proof with legal sufficiency that the Respondent used or possessed multiple prohibited substances or used prohibited substances on multiple occasions or engaged in deceptive or obstructing conduct to avoid the detection or
adjudication of an anti-doping rule violation.

Award:
- The Respondent has committed a doping violation under the WADA Code, Article 10.2, by reason of the use of the testosterone prohormone (androstendione).
- Regardless of an athlete's age, all are entitled to compete on a level playing field at all events, including Masters level events. Cheating and doping have no place in sports.
- The two-year suspension, which began on December 11,2009, the effective date of the provisional suspension, is affirmed.
- The Respondent is held to forfeit his medals from the 2009 World Masters' Events, lAAF ADR 40.1.

Preliminary Award Regarding Provisional Suspension

This matter came before the North American Panel of Arbitration for Sport Panel as a consequence of the United States Anti-Doping Agency's ("USADA") determination that a provisional suspension should be imposed upon Val Barnwell ("Athlete").

The United Medix Laboratories (Helsinki, Finland) reported an Adverse Analytical Finding on Athlete's A Sample collected in competition on August 3, 2009 for a Prohibited Substance. USADA is required in such circumstances to Impose a provisional suspension promptly after review as to whether an applicable therapeutic use exemption has been granted or there is any apparent departure from the standards applied to laboratories.

USADA notified Athlete by letter dated October 29, 2009, which was received on November 3, 2009, that he had until November 5, 2009, to accept a provisional suspension. Since Athlete did not accept the provisional suspension
proposed by USADA by November 5, 2009, USADA requested that the Panel Schedule a Provisional Hearing and render its determination on or before December 11, 2009.

The sole issue for the Panel to determine is whether USADA's decision that a provisional suspension should be imposed shall be upheld, based on whether probable cause exists for USADA to proceed with a charge of an anti-doping rule violation against Athlete. To establish probable cause it is not necessary for any B Sample analysis to have been completed.

The North American Court of Arbitration for Sport Panel, being duly advised, hereby finds:

- USADA complied with the review and notification requirements of the Code and by supplying Athlete prior to the Provisional Hearing, on December 10, 2009 with any and all laboratory documentation in the possession of USADA for the sample.
- USADA has met its burden of showing that probable cause exists for USADA to proceed with a charge of an anti-doping rule violation against Athlete. The Panel therefore upholds USADA's decision to impose a provisional suspension against Athlete (the "Provisional Suspension").
- The Provisional Suspension shall make Athlete ineligible to participate in any "Competition or Event", as such are defined in the Code, or from membership or inclusion upon any team organized or nominated by the United States Olympic
Committee or any National Governing Body.
- The Provisional Suspension shall be in effect until the final hearing has been held and an award issued by the Panel or until the earlier of one of the following events: USADA and Athlete agree to a sanction, USADA withdraws its case against Athlete, or Athlete withdraws his request for arbitration or fails to prosecute his case resulting In imposition of a sanction.
- If within three (3) business days, Athlete submits to AAA any evidence in opposition to USADA's application for a provisional suspension, the Panel shall make a determination as to whether or not to reopen the Provisional Suspension hearing, failing which the Provisional Suspension shall be effective December 11, 2009.
- Athlete shall be entitled to have his case heard pursuant to the Expedited Track set forth In Section 13 of the Protocol, if he submits to the Panel a written request for such expedited treatment within three (3) business days from December 11, 2009.
- The parties shall bear their own costs and attorney's fees.

Respondent. David Clinger, is a 32 year old elite cyclist who provided USADA urine specimen on July 30, 2009, after placing second in the Men's Road Race at the USA Elite Road Nationals in Bend, Oregon. Respondent's urine sample tested positive (A and B sample) for synthetic testosterone, an anabolic agent, and modafinil, a stimulant.

Respondent contends that his Positive Test is the result of his use of Modafinil and Testosterone, which he contends was prescribed by his physician prior to his Positive Test.
Respondent submitted two therapeutic use exemption (TUE) applications for the use of Testosterone to USADA after his Positive Test, the first of which he submitted on September 2. 2009, and which was returned to him by USADA as incomplete on September 9, 2009. and the second of which he submitted on September 17, 2009 and which the USADA TUE-Committee denied on September 23, 2009 because medical records provided did not meet the criteria set forth in the WADA International Standard for TUEs. Respondent was provisionally suspended effective September 3, 2009, after a telephonic hearing before a panel of arbitrators of the American Arbitration Association.

Respondent has stipulated to the essential element of an Anti-Doping Rule Violation: the Prohibited Substances were present in his bodily specimen. Respondent's arguments with respect to the
circumstances under which he took the Prohibited Substances do not meet the criteria of the applicable rules for exceptional circumstances. as required in order to reduce or eliminate the period of Ineligibility:
- Respondent did establish how the Prohibited Substances entered his system: he took them under the care of a physician.
- Based on the definitions in the applicable rules. Respondent was unable to establish that he bore no fault or negligence or no significant fault or negligence in relationship to the anti-doping rule violation: Respondent was aware of the rules against taking Prohibited Substances. he knew about the TUE process, he had previously requested thal his physician complete similar fomis to those required in the current TUE process, he did not ask his physicians to complete the TUE
process before taking the Prohibited Substances.
- Though Respondent argues this was a "first aid situation," that would not be a valid rationale for disregarding the TUE process. And even if a "first aid situation" were some kind of exception, this was not an emergency/”First aid situation." as Respondent took the
Testosterone every 2 weeks for 3 months after it was prescribed. He had plenty of time then to apply for a TUE. Respondent deliberately disregarded the rules, of which he was aware, al least with respect to the Testosterone.
- Nor did Respondent exercise any level of caution, and certainly not utmost caution, as required to establish exceptional circumstances. He knew that the Testosterone
was a Prohibited Substance in direct contradiction of the applicable rules. He nevertheless continued to take it.
- With respect to the Modafinil. Respondent exercised no caution either. He did not inquire about the ingredients in the medications he was being prescribed or consult the list of Prohibited Substances with respect to the Resperdol prescription.

USADA further argued that there are "aggravating circumstances" in this case. such that the panel should impose a period of Ineligibility of 4 years on the Respondent. Mr. Clinger admitted the anti-doping rule violation from the outset of this case. He never denied taking the Prohibited Substances, but rather claimed that he took the Prohibited Substances under adverse circumstances that he believed consisted of exceptional circumstances.
Thus, the panel does not address whether the facts of this case consist of aggravating circumstances, but rather find that the Respondent can avoid the application of this provision based on his admission of the anti-doping rule violation.

The Arbitrators therefore rule as follows:
- Mr. Clinger shall be ineligible to compete for a period of two years, under the UCI ADR, beginning on the date of his provisional suspension, September 3,2009. Mr. Clinger shall be eligible to compete again on September 2, 2011.
- Mr. Clinger's competition results between July 30, 2009 and September 3, 2009 shall be disqualified.

Preliminary Award Regarding Provisional Suspension

Respondent, David Clinger, is a 32 year old elite cyclist who provided urine sample on July 30, 2009, after placing second in the Men’s Road Race at the USA Elite Road Nationals in Bend, Oregon.
The UCLA laboratory reported an Adverse Analytical Finding on Mr. Clinger's A Sample collected in competition on July 30, for two Prohibited Substances. In accordance with Article 7.5.1 of the Code, USADA is required in such circumstances to impose a provisional suspension promptly after review whether an applicable therapeutic use exemption has been granted or there is any apparent departure from the standards applied to laboratories.

The sole issue for the Panel to determine is whether USADA's decision that a provisional suspension should be imposed shall be upheld, based on whether probable cause exists for USADA to proceed with a charge of an anti-doping rule violation against Mr. Clinger. To establish probable cause, in accordance with Article 7.5.1 of the Code, it is not necessary for any B Sample analysis to have been completed.

The Panel, being duly advised, hereby finds:
- USADA complied with the review and notification requirements of the Code and by supplying Mr. Clinger, prior to the Provisional Hearing, on August 30,2009 with any and all laboratory documentation in the possession of USADA for the Urine sample.
- USADA has met its burden of showing that probable cause exists for USADA to proceed with a charge of an anti-doping rule violation against Mr. Clinger. The Panel therefore upholds USADA’s decision to impose an provisional suspension against Mr. Clinger.
- The provisional suspension shall Mr. Clinger ineligible to participate in any “Competition or Event”.
- The Provisional Suspension shall be in effect until the final hearing has been held and an award issued by the Panel.
- Mr. Clinger shall be entitled to have his case heard pursuant to the Expedited Track set forth in Section 13 of the Protocol, if he submits to the Panel a written request for such expedited treatment within three (3) business days from September 3, 2009.

In August 2010 the World Triathlon Corporation (WTC) has reported an anti-doping rule violation against the Athlete Timothy Marr after his A and B samples tested positive for the prohibited substance Amphetamine. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Tribunal of the American Arbitration Association.

The Athlete denied the intentional use of the substance and explained with evidence that he ingested the substance 72 hours beforte the test. He stated that he consumed his friend's drink that contained prescribed Adderall while he was not present when the medication was poured by his friend into his drink.

Considering the evidence in this case the Arbitrator finds that the Athlete established No Significant Fault and how the substance entered his system without intention to enhance sport performance.
Therefore the AAA Tribunal decides on 22 February 2011 to impose a period of ineligibility on the Athlete to run from 13 August 2010 until the date of this Award.

In this case involves respondent's first alleged anti-doping violation:
- assisted or incited others to use prohibited substances or prohibited technique thereby committing a doping offense in violation of the World Anti-Doping Agency Code or International Amateur Athletic Federation ("IAAF") rules and regulations
- traded, trafficked, distributed or sold prohibited substances in violation of the applicable WADA and IAAF rules and regulations
- engaged in covering up his rule violations during these proceedings thereby violating additional rules.

Respondent is related to BALCO/Victor Conte, evidence is provided. Respondent administered the drugs Modafinil and Repoxygen (EPO) to other Athletes. Modafinil especially to his wife Zhanna Block in out of competition periods.

Decision and award: respondent had committed a doping violation under each rules: Article 7.2 of IAAF rule 19 and violated IAAF Anti-Doping Rules 32.2(h), 56.3, and 56.4.
The sanction is a ten year period of ineligibility commencing January 1, 2009 and ending on January 1, 2019.
Respondent is prohibitted from participating in and having access to the training facilities of the USOC training Centers or other programs and activities of the USOC.