ADAK 2019 ADAK vs Sheetal Jayendra Kotak - Appeal

Related case:

ADAK 2018 ADAK vs Sheetal Jayendra Kotak
March 7, 2019

On 7 March 2019 the Kenya Sports Disputes Tribunal decided to impose a 2 year period of ineligibility on the bodybuilder Sheetal Jayendra Kotak after her sample tested positive for the prohibited substances 19-norandrosterone, 19-noretiocholanolone (Nandrolone), Boldenone and Metenolone.

In this case the Tribunal deemed that there were inconsistencies and that the incomple case file raises serous doubts in the mind of the Panel regarding fair prosecution by ADAK.

Hereafter in March 2019 the Anti-Doping Agency of Kenya (ADAK) appealed this Decision with the Sports Disputes Tribunal. ADAK contended that in first instance the Hearing Panel was erononously in their findings regarding:

• the imposition of a 2 year period of ineligibility;
• that the violation was not intentional; and
• that the source of the positive test had been established.

ADAK asserted that the Athlete had already admitted the violation and that none of the medications she allegedly had used contained any of the prohibited substances. The Athlete failed to demonstrate that the violation was not intentional, neither did she mention her medication on the Doping Control Form while she only produced an outdated medical report from August 2017.

The Athlete disputed the jurisdiction of the Tribunal and claimed that the appeal was filed too late while she already had served the current 2 year period of ineligibility. The Athlete already gave a promt admission, denied that the violation was intentional and was willing to serve an additional period of ineligibility.

Considering the arguments of the parties the Appeal Panel decides on 3 November 2020 to set aside the first instance Decision and to impose a 4 year period of ineligibility on the Athlete starting on the date of the sample collection, i.e. on 17 January 2018.

CAS 2015/A/3876 James Stewart Jr. v. Federation Internationale de Motocyclisme

In June 2014 the International Motorcycling Federation (FIM) has reported an anti-doping rule violation against the American professional rider James Stewart Jr. after his samples, provided in April 2014 and in June 2014, tested positive for the prohibited substance amphetamine.

After notification a provisional suspension was ordered. However the Athlete competed in 4 Lucas Motor Oil Series of races on the basis that these events were not FIM events, nor events of the American Motorcyclist Association (AMA).  

In 2012 the Athlete was diagnosed as suffering from ADHD and since then he used prescribed Adderall (Amfetamine) to treat his condition. Before April 2014 the Athlete had used his medication without a TUE. After the Athlete became aware that he had to obtain a TUE, his application in April 2014 was finally granted by the FIM TUE Board in October 2014 for a prospective TUE only. 

Because the Athlete had tested positive for a prohibited substance without a valid TUE the FIM International Disciplinary Court (DCI) deemed that he had committed an anti-doping rule violation and accordingly decided on 12 December 2014 to impose a 16 month period of ineligibility on the Athlete starting on the date of the sample collection, i.e. on 12 April 2014. 

Hereafter in January 2015 the Athlete appealed the FIM Decision with the Court of Arbitration for Sport (CAS). The Athlete requested to set aside the FIM decision of 12 December 2014 and for a reduced sanction. 

The Athlete admitted the violation and denied that that it was intentional. He asserted that he bears No Significant Fault or Negligence and that he would have been able to obtain a retrospective TUE. He argued that before April 2014 he was unaware that he had to apply for a TUE since he had not received anti-doping education from FIM. 

Due to his ADHD he alleged that he had no recollection that he had signed the Doping Control Forms confirming that he had not used any medication regularly. Furher he argued that FIM had no jurisdiction to impose a provisional suspension on any events outside its jurisdiction such als the Lucas Oil events. 

The Panel accepts that the Athlete had diagnosed ADHD and that he used the prohibited substance as a prescribed medication while non of his doctors were sports specialists and neither had they informed him about anti-doping. The granted TUE demonstrated that he had a valid therapeutic reason to use the Adderrall and he didn’t try to gain an unfair competitive advantage from use of the substance. 

Nevertheless the Panel holds that the Athlete failed in his duty to be aware whether the medication he used contained a prohibited substance and as a professional sportsman he had signed his Doping Control Forms confirming that he had not used any medication.

The Panel deems that under the Rules there are no grounds to grant the Athlete a retroactive TUE, nor to reduce the sanction based on No Significant Fault or Negligence. Considering the Athlete’s conduct regarding the available anti-doping information and his medication the Panel concludes the the imposed sanction of 16 months is proportionate.

Finally the Panel establishes that FIM has authority and jurisdiction not to recognize the Athlete’s results obtained during the Lucas Motor Oil Series events although its organiser is completely independent. 

Therefore the Court of Arbitration for Sport decides on 27 April 2015 that: 

1.) The appeal filed by Mr James Stewart Jr. against the decision rendered on 12 December 2014 by the International Disciplinary Court of the Federation Internationale de Motocyclisme is partially upheld.

2.) The decision rendered on 12 December 2014 by the International Disciplinary Court of the Federation Internationale de Motocyclisme is confirmed except that it is determined that the disqualifications of Mr James Stewart, Jr. from:

• (i) the Round of the Lucas Motor Oil Series at Blountville, Tennessee on 28 June 2014
• (ii) the Round of the Lucas Motor Oil Series at Buchanan, Michigan on 5 July 2014
• (iii) the Round of the Lucas Motor Oil Series at Mechanicsville, Maryland on 12 July 2014
• (iv) the Round of the Lucas Motor Oil Series at Millville, Minnesota on 19 July 2014

have effect only so far as Federation Internationale de Motocyclisme has jurisdiction or as so far as other authorities recognise the disqualifications.

3.) The award is pronounced without costs, except for the CAS Court Office of CHF 1000 ( one thousand Swiss Francs) already paid by the Appellant and to be retained by the CAS Court Office.

4.) Each party shall bear its own costs.

5.) All other and further claims are dismissed.

CAS 2007/A/1356 Tomaž Nose v/ Slovenian Cycling Federation (Kolesarska Zveza Slovenije)

In October 2006 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Slovenian cyclist Tomaž Nose after his sample tested positive for his elevated T/E ratio (testosterone / epitestosterone) above the WADA threshold. The Athlete did not test positive for Testosterone while he used prescribed Testosterone therapy due to his diagnosed low hormone levels.

In this matter the Athlete had a valid TUE issued by the Slovenian Olympic Committee for the use of the prescribed Testoviron. However the Athlete was unaware that he should have obtained a TUE from the UCI for international cycling events. 

Consequently on 10 August 2007 the Anti-Doping Commission (ADC) of the Slovenian Cycling Federation (KZS) decided to impose a 20 month period of ineligibility on the Athlete starting back dated on 6 November 2006. 

Hereafter in August 2007 the Athlete appealed the KZS decision with the Court of Arbitration for Sport (CAS). 

The Athlete admitted the use of Testosterone therapy and denied that the violation was intentional since he had a valid TUE and there was not positive test. He argued that he was unaware that his TUE was not valid for international races.

He had relied on experts to obtain a valid TUE and all assurances had been given by those experts as to the validity of the TUE. Also the response of WADA gave him sufficient reasons to believe that his current TUE was valid for international competitions. 

Furthermore the Athlete asserted that the ADC Decision of 10 August 2007 was based on erroneous and incomplete determination of the circumstances, erroneous application of material law and material breaches of procedure that impacted on the correctness and legality of the Decision. 

The Panel agrees that in First Instance certain material breaches of procedure occurred which impacted on the correctness an quality of the ruling. For that reason the Panel decided to deal with the merits of the case to decide de novo. It therefore does not have to deal with the procedural irregularities which occurred according to the Athlete. 

The Panel holds that the TUE issued by the Slovenian Olympic Committee was not valid for international events. As a result the Panel finds that under the UCI Rules the Athlete committed an anti-doping rule violation by using a Prohibited Substance with a valid TUE.

However the Panel finds that the circumstances in this case have been very exceptional and must be seen as a chain of unfortunate circumstances which may not easily be found in another case.

The Panel established that the Athlete was aware of his duty to obtain a TUE for the use of his medication, he consulted the best qualified expert on anti-doping matters in Slovenia and fully relied on his advice. Unfortunately the Slovenian expert was unfamiliar with the international TUE-procedure and the contacted WADA expert did not notify the Slovenian expert about his erroneous TUE application but rather provided confusing information. 

On that account the Panel deems that the Athlete cannot be blamed for relying on the offical’s advice regarding his TUE application. It concludes that the Athlete’s violaton was not intentional and that he bears No Significant Fault or Negligence. 

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

1. The Appeal filed by Tomaž Nose is partially admitted.
2. The decision issued by the Anti-doping Commission of the Slovenian Cycling Federation is amended as follows: The period of Ineligibility is set to 12 months and the commencement date of the period of Ineligibility is fixed on 11 September 2006 instead of 6 November 2006. The period of ineligibility thus ended on 10 September 2007.
3. Tomaž Nose is disqualified from the Tour of Slovenia race, which took place between 8 and11 June 2006, and his results obtained at this Tour are annulled.
4. All other motions or prayers for relief are dismissed.
5. This award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss francs) paid by Tomaž Nose, which is retained by CAS.
6. Slovenian Cycling Federation shall pay to Tomaž Nose the amount of CBF 5,000 (five thousand Swiss Francs) as a contribution towards the expenses incurred by Tomaž Nose inconnection with these arbitration proceedings.

Related case:

ADAK 2018 ADAK vs Michael Odhiambo
September 20, 2018

On 20 September 2018 the Kenya Sports Disputes Tribunal decided to impose a 4 year period of ineligibility on the boxer Michael Odhiambo after he tested positive for the prohibited substance Cannabis.

Hereafter in june 2019 the Anti-Doping Agency of Kenya (ADAK) reported that the Athlete had breached the imposed period of ineligibility because he had participated in boxing matches.

In this case there were delays in the proceedings attributed to the Athlete due to he acted evasive and finally could be notified in by ADAK in July 2020. Hereafter the Athlete failed to respond to the ADAK communication nor did he attend the hearing of the Kenya Sports Disputes Tribunal.

ADAK stated that it had received information from a whistleblower en hereafter had established that the Athlete had participated in 3 boxing matches in the United States in February 2018, November 2018 and in January 2019 during the imposed perod of ineligibility

The Panel holds that the Athlete was duly notified, that he acted evasive, failed to attend the hearing nor filed any response to the charges. The Panel deems that there was sufficient evidence that the Athlete had breached the period of ineligibility through his participation in 3 boxing matches.

Therefore the Kenya Sports Disputes Tribunal decides on 19 November 2020 to impose an additional 4 year period of ineligibility on the Athlete starting on the date the the current period of ineligibility wil end, i.e. on 5 February 2022.

WADA Legal Note on the CAS Award WADA v. RUSADA (CAS 2020/O/6689) / World Anti-Doping Agency (WADA). - Montreal : WADA, 2021

The World Anti-Doping Agency (WADA) had published the Court of Arbitration for Sport’s (CAS’s) 186-page full reasoned decision regarding its 17 December 2020 ruling in favor of WADA to declare the Russian Anti-Doping Agency (RUSADA) non-compliant with the World Anti-Doping Code for a period of two years and to impose a range of associated consequences. This publication, which was also made on the CAS website, is in keeping with Article 10.4.1 of the 2018 version of the International Standard for Code Compliance by Signatories (ISCCS).

Further to WADA’s media release of 17 December, the Agency has also drafted a legal note that it shares today, which outlines the background leading to the CAS proceedings, provides a summary of the parties’ key arguments, and summarizes the CAS decision.

This CAS decision relates specifically to the manipulation of Moscow Laboratory data by the Russian authorities before and while the data were being forensically copied by WADA’s Intelligence and Investigations Department in January 2019 as part of Operation LIMS. This manipulation was in clear contravention of critical criteria set by WADA’s Executive Committee when RUSADA was reinstated as compliant, under strict conditions, in September 2018.

The CAS decision does not relate to the broader Russian doping crisis dating back to 2014 before WADA was authorized to carry out investigations and before it had the proper legal basis to pursue this matter under the ISCCS.

CAS 2020/O/6689 World Anti-Doping Agency v. Russian Anti-Doping Agency

• World Anti-Doping Agency (WADA)
• Russian Anti-Doping Agency (RUSADA)

Intervening Parties:

• International Olympic Committee
• International Paralympic Committee
• Russia Olympic Committee
• Russia Paralympic Committee
• European Olympic Committees
• International Ice Hockey Federation
• Russian Ice Hockey Federation
• Lilya Akhaimova, Regina Isachkina, Elena Osipova, Arina Averina, Olga Ivanova, Yana Pavlova, Dina Averina, Yulia Kaplina, Alexey Rubtsov, Ilya Borodin, Evgeniya Kosetskaya, Ekatarina Selezneva, Artur Dalaloyan, Elena Krasovskaia, Nikita Shleikher, Alina Davletova, Evgeny Kuznetsov, Vladimir Sidorenko, Evgenija Davydova, Sayana Lee, Inna Stepanova, Inna Deriglazova, Vladimir Malkov, Maria Tolkacheva, Yana Egorian, Polina Mikhailova, Dmitry Ushakov, Vladislav Grinev, Andrei Minakov, Sofiya Velikaya, Kristina Ilinykh, Nikita Nagornyy, and Andrey Yudin
• Sasha Gusev, Daniil Sotnikov, Ilya Borisov, Igor Ovsyannikov, Nachyn Coular, Valeria Koblova, Elizaveta Sorokina, Ivan Golubkov, Elena Krutova, and Viktoria Potapova

This case deals with RUSADA’s alleged non-compliance of a critical requirement under the International Standard for Code Compliance by Signatories (ISCCS) to procure the delivery to WADA of authentic data from the Moscow Anti-Doping Laboratory.

In January 2020 WADA requested CAS for arbitration against RUSADA. Hereafter also the IOC, IPC, ROC, EOC, IIHF, FHR and two Athletes Groups filed their requests to intervene in the proceedings.

WADA contended that the Moscow Data had been materially and improperly altered prior to a copy being provided to WADA in January 2019. The alleged alterations included:

• back-dating;
• disk formatting;
• deletions of database back-ups;
• secure erasing of files;
• selective removal of user action commands from command logs;
• replacement of databases;
• deletion of records;
• removal of tables; and
• missing command logs.

On that account WADA sought a finding of such non-compliance and the imposition of a number of consequences deriving therefrom. RUSADA opposed WADA’s claims. It denied that the data retrieved by WADA from the Moscow Laboratory was manipulated and, in the alternative, denied any responsibility for manipulations and challenged the validity of the Signatory Consequences sought by WADA.

The Intervening Parties’ submissions, in a number of areas, bore substantial similarity to those made by RUSADA or overlapped with submissions made by other Intervening Parties.

As a result of the Parties’ submissions the CAS Panel examined the following issues:

• the validity of the ISCCS and WADA’s requirement that RUSADA procure the delivery to WADA of authentic data from the Moscow Laboratory;
• whether RUSADA complied with that requirement; and
• if not, what Signatory Consequences can and should be imposed.

At first the CAS Panel in this case dismissed the objections to its jurisdiction and settled a number of other procedural matters raised by the Parties.

The Panel established that RUSADA consented to the 2018 WADC, the ISCCS and the Post Reinstatement Conditions. This consent was not compromised or invalidated by the safegards in its defence.

Also the Panel established that the Post-Reinstatements Data Requirement was valid and binding on RUSADA, and non-compliance could lead to consequences under the ISCCS. The Panel does not accept RUSADA’s submission that there were no changes, losses or deletions of data pertaining to results of doping sample analysis.

Based on the evidence the Panel concludes that RUSADA failed to procure an authentic copy of the Moscow Data and therefore failed to comply with the Post-Reinstatement Data Requirement. The steps taken to manipulate the Moscow Data and deceive WADA could hardly be more serious. For that reason the Panel deems that WADA has established that RUSADA in non-compliance with the 2018 WADC.

The Panel regards that, despite having an opportunity to come clean and draw a line under this scandal by providing access to the Moscow Data, Russian authorities engaged in an extensive manipulation of that data. This conduct is likely to thwart or at least substantially hinder the ability to identify those athletes who participated in the doping scheme.

Having further found that RUSADA failed to comply with the Post-Reinstatement Data Requirement, the Panel has accordingly imposed consequences to reflect the nature and seriousness of the non-compliance and to ensure that the integrity of sport against the scourge of doping is maintained.

Nevertheless the consequences which the Panel has decided to impose are not as extensive as those sought by WADA. This should not, however, be read as any validation of the conduct of RUSADA or the Russian authorities.

Therefore the Court of Arbitrtion for Sport decides on 17 December 2020 that:

1. The Request for Arbitration filed by the World Anti-Doping Agency (“WADA”) dated 9 January 2020 is partially upheld.
2. The Panel has jurisdiction to determine this matter.
3. The Russian Anti-Doping Agency (“RUSADA”) is found to be non-compliant with the World Anti-Doping Code (“WADC”) in connection with its failure to procure that the authentic LIMS data and underlying analytical data of the former Moscow Laboratory was received by WADA.
4. The orders below come into effect on the date of this Award and remain in effect until the second anniversary of that date (the “Two-Year Period”).       [...]
5. RUSADA is required to satisfy the following reinstatement conditions during the Two-Year Period (or any shorter period as agreed between WADA and RUSADA) in order to be reinstated as a compliant Signatory.      [...]
6. RUSADA is to pay a fine to WADA of 10% of its 2019 income or USD 100,000 (one hundred thousand United States dollars) (whichever is lower) within 90 (ninety) days from the notification of the present arbitral award. Such amount shall accrue interest at a rate of 5% per annum in case of non-timely payment.
7. The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne 80% by RUSADA and 20% by WADA.
8. RUSADA is ordered to pay WADA a total amount of CHF 400,000 (four hundred thousand Swiss francs) as contribution towards its legal and other expenses incurred in connection with these arbitration proceedings within 90 (ninety) days from the date the present award. Such amount shall accrue interest at a rate of 5% per annum in case of non-timely payment.
9. RUSADA and each Intervening Party shall bear its own legal costs and other expenses incurred in connection with this arbitration.
10. All other motions or prayers for relief are dismissed.

Finding the golden genes : Advances in gene therapy could tempt some athletes to enhance their genetic makeup, leading some researchers to work on detection methods just in case / Patrick Barry. - (Science News 174 (2008) 3 (2 August); p. 16-21)

• Doi: 10.1002/scin.2008.5591740321

New application of the CRISPR-Cas9 system for site-specific exogenous gene doping analysis / Joon-Yeop Yi, Minyoung Kim, Hophil Min, Byung-Gee Kim, Junghyun Son, Oh-Seung Kwon, Changmin Sung. - (Drug Testing and Analysis (2020) 17 November)

• PMID: 33201595
• DOI: 10.1002/dta.2980

Abstract

The increased potential for gene doping since the introduction of gene therapy presents the need to develop anti-doping assays. We therefore aimed to develop a quick and simple method for the detection of specifically targeted exogenous doping genes utilizing an in vitro clustered regularly interspaced short palindromic repeats-CRISPR associated protein 9 (CRISPR-Cas9) system. A human erythropoietin (hEPO) is a drug frequently used for doping in athletes, and gene doping using gene transfer techniques may be attempted. Therefore, we selected hEPO gene as a model of exogenous doping gene, and complemental single guide RNA (sgRNA) was designed to specifically bind to the four exon-exon junctions in the hEPO cDNA. For the rapid reaction of CRISPR-Cas9, further optimization was performed using an open-source program (CRISPOR) that avoids TT and GCC motifs before the protospacer adjacent motif (PAM) domain and predicts the efficiency of the sgRNA. We optimized the in vitro Cas9 assay and dual use of sgRNA for double cleavage and identified the limit of detection (LOD) of the 1.25 nM of the double cleavage method. We expect that the improved CRISPR-Cas9 method can be used for anti-doping analyses of gene doping.

Detection of non-targeted transgenes by whole-genome resequencing for gene-doping control / Teruaki Tozaki, Aoi Ohnuma, Masaki Takasu, Kotono Nakamura, Mio Kikuchi, Taichiro Ishige, Hironaga Kakoi, Kei-Ichi Hirora, Norihisa Tamura, Kanichi Kusano, Shun-Ichi Nagata. - (Gene Therapy (2020) 7 August)

• PMID: 32770095
• DOI: 10.1038/s41434-020-00185-y

Abstract

Gene doping has raised concerns in human and equestrian sports and the horseracing industry. There are two possible types of gene doping in the sports and racing industry: (1) administration of a gene-doping substance to postnatal animals and (2) generation of genetically engineered animals by modifying eggs. In this study, we aimed to identify genetically engineered animals by whole-genome resequencing (WGR) for gene-doping control. Transgenic cell lines, in which the erythropoietin gene (EPO) cDNA form was inserted into the genome of horse fibroblasts, were constructed as a model of genetically modified horse. Genome-wide screening of non-targeted transgenes was performed to find structural variation using DELLY based on split-read and paired-end algorithms and Control-FREEC based on read-depth algorithm. We detected the EPO transgene as an intron deletion in the WGR data by the split-read algorithm of DELLY. In addition, single-nucleotide polymorphisms and insertions/deletions artificially introduced in the EPO transgene were identified by WGR. Therefore, genome-wide screening using WGR can contribute to gene-doping control even if the targets are unknown. This is the first study to detect transgenes as intron deletions for gene-doping detection.

Digital PCR detection of plasmid DNA administered to the skeletal muscle of a microminipig : a model case study for gene doping detection / Teruaki Tozaki, Shiori Gamo, Masaki Takasu, Mio Kikuchi, Hironaga Kakoi, Kei-Ichi Hirota, Kanichi Kusano, Shun-Ichi Nagata. - (BMC Res Notes 11 (2018) 10 October)

• PMID: 30309394
• PMCID: PMC6180624
• DOI: 10.1186/s13104-018-3815-6

Abstract

Objective: Doping control is an important and indispensable aspect of fair horse racing; genetic doping has been recently included to this. In this study, we aimed to develop a detection method of gene doping. A plasmid cloned with human erythropoietin gene (p.hEPO, 250 μg/head) was intramuscularly injected into a microminipig. Subsequently, p.hEPO was extracted from 1 mL of plasma and detected by droplet digital polymerase chain reaction.

Results: The results confirmed that the maximum amount of plasmid was detected at 15 min after administration and the majority of the plasmid was degraded in the bloodstream within 1-2 days after administration. In contrast, low amounts of p.hEPO were detected at 2-3 weeks after administration. These results suggest that the proposed method to detect gene doping can help obtain information for experiments using horses.