CAS 2022/A/9334 Jakub Świerczok v. Asian Football Confederation (AFC)

• Football
• Doping (trimetazidine)
• Consent award
• Consent award and necessity of WADA’s approval

1. Under Swiss law an arbitration tribunal sitting in Switzerland has authority to issue an award embodying the terms of the parties’ settlement, if the consenting parties do agree to such a termination of their dispute. The CAS panel’s ratification of the Parties’ agreement and its incorporation into a consent award serves the purpose of vesting the agreement with a res judicata effect and of enabling the enforcement of their said agreement. Article R56 para. 2 of the CAS Code provides that “[…] Any settlement may be embodied in an arbitral award rendered by consent of the parties”.

2. Following article 10.3 lit. c of the WADA International Standard for Results Management, no settlement embodied in an arbitral award rendered by consent of the parties as per Article R56 of the CAS Code shall be entered into by an Anti-Doping Organization without WADA’s written approval.

In December 2021 the Asian Football Confederation (AFC) reported an anti-doping rule violation against the Polish football player Jakub Świerczok after his A and B samples tested positive for the prohibited substance Trimetazidine.

Consequently the AFC Disciplinary and Ethics Committee decided on 26 October 2022 to impose a 4 year period of ineligibility on the Athlete.

Hereafter in December 2022 the Athlete appealed the AFC Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to annul the imposed sanction.

The Athlete admitted the violation and denied the intentional use of the substance. He filed new evidence that demonstrated that a contaminated product he had used was the source of the positive test results.

In March 2023 the Parties went into a Settlement Agreement with approval of the World Anti-Doping Agency. The Settlement Agreement stipulated that:

• The Appealed Decision of the AFC is set aside and the sanction lifted.
• The presence of a prohibited substance has been established in the Athlete's sample.
• The Athlete admitted he committed an anti-doping rule violation.
• He demonstrated that the source of the prohibited substance was a contaminated product.
• The Athlete acted not intentional and with No Significant Fault or Negligence.
• The Athlete accepted a sanction of 6 months, starting on the date of the provisional suspension, i.e. on 8 December 2021.
• The Athlete has already served the sanction and is eligible to participate in football immediately.

Thereupon the Parties requested the CAS Panel to ratify the Settlement Agreement and to render a Consent Award. The Panel determines that the Settlement Agreement was valid and had approval of WADA.

Therefore the the Court of Arbitration for Sport decides on 27 March 2023 that:

1.) The Parties’ Settlement Agreement dated 22 February 2023 is hereby ratified with the consent of the parties, and its terms are incorporated into this arbitral Consent Award.

2.) The arbitral procedure CAS 2022/A/9334 Jakub Świerczok v. Asian Football Confederation is terminated and deleted from the CAS roll.

3.) (…).

4.) (…).

5.) Each Party is hereby ordered to perform the obligations and duties as per their Settlement Agreement.

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

CAS 2022/A/9113 Nairo Alexander Quintana Rojas v. Union Cycliste Internationale (UCI)

• Cycling
• Doping (tramadol)
• Nature and value of the UCI Medical Rules
• Validity of sanctions under the tramadol control
• Absence of an obligation of B-sample in tramadol control and use of a laboratory not accredited by WADA
• Right to be heard and tramadol control

1. The UCI Medical Rules are binding as part of the UCI Cycling Regulations. By requesting a license, any rider agrees to abide and be bound by these Rules and explicitly agrees and acknowledges that tramadol is prohibited in-competition. In this respect, any rider agrees to submit to in-competition tramadol control.

2. By virtue of their status, expertise and responsibility for protecting and reconciling the interests of all stakeholders in a particular sport, international federations such as the UCI enjoy a margin of appreciation in determining what factors are relevant and necessary to ensure the health and safety of all of their competitors and what regulatory measures are necessary in order to achieve this. The tramadol control within the UCI Medical Rules is expressed to be in response to UCI concern about the use of tramadol on individual riders and on the safety of the competitions generally. It is therefore open to the UCI to ban a substance on health and safety grounds and doing so is not in breach of the UCI’s obligations as a signatory of the World Anti-Doping Code. On the same note, the fact that tramadol controls are carried out by the ITA does not convert the UCI Medical Rules into a set of anti-doping rules. WADA itself has confirmed that the UCI Medical Rules are not anti-doping rules.

3. The Tramadol Control and the UCI Medical Rules do not contain any provision for a B sample. This follows the logic that the tramadol control is a medical control process and not anti-doping. Therefore is no obligation on the UCI to provide for a B sample analysis. Consequently, the absence of a B sample analysis does not render a tramadol control invalid. With the same logic, there is no requirement that the UCI uses only WADA-accredited laboratories for the testing and analysis under the tramadol control since this is not an anti-doping process.

4. The right to be heard is a fundamental and general principle which derives from the elementary rules of natural justice and due process. In accordance with article 133.070(a) of the UCI Medical Rules, in case of presence of tramadol, the UCI Medical Director “is competent to decide and sanction all cases” for a first infringement. In case of allegations of evading a tramadol sample collection, tampering or attempting to tamper with the tramadol sample collection process, refusing or failing to submit to tramadol sample collection or failure to report to the tramadol control station within the time limit provided under Article 13.3.067 of the UCI Medical Rules without compelling justification, the UCI Medical Director “may invite the rider to provide his/her position on the reported infringement”. This article does not impose an obligation on the UCI Medical Director to invite the rider to provide an explanation; by use of the word “may” it is obvious that UCI Medical Director has the discretion to do so but is not so obligated.

In August 2022 the International Cycling Union (UCI) reported a violation against the Colombian cyclist Nairo Alexander Quintana Roja after his sample tested positive for the prohibited substance Tramadol. Consequently for violating the UCI Medical Rules the UCI Medical Director decided on 17 August 2022 to impose on the Athlete a fine and for disqualification of his results.

Hereafter the Athlete appealed the UCI decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to declare that he had not committed a violation of the UCI Medical Rules.

The Athlete made the following assertions:

• This is an anti-doping issue and the World Anti-Doping Code is applicable.
• He could only file an appeal within the set deadline of 10 days instead of the 30 days period under the UCI Anti-Doping Rules.
• There was no information about the chain of custory and his samples were unaccountable between sample collection and arrival in the laboratory.
• There was no provision for testing of the B sample.
• The laboratory that tested his sample was not WADA accredited.
• His right to be heard was denied by the UCI Medical Director before rendering a decision.
• The testing method and testing results are invalid.

The UCI requested the Panel to dismiss the appeal and made the following contentions:

• The ban on Tramadol is not an anti-doping matter, yet a health and safety matter. 
• The UCI Medical Rules are applicable in this case not the World Anti-Doping Code.
• The UCI procedure for the chain of custody, the testing method and testing results were valid.
• WADA confirmed that the UCI Medical Rules are not anti-doping rules.
• The UCI Medical Rules have no provisions for the B sample analysis, nor for the chain of custody, nor for a hearing.
• Undisputed is that Tramadol was present in the Athlete's sample.

The Panel assessed and addressed the issues raised by the Parties and determines that:

• The UCI Medical Rules are binding as part of the UCI Cycling Regulations and are binding for the Athlete.
• Under the UCI Medical Rules indeed the Athlete is allowed only 10 days to respond.
• The shorter time period to appeal does not render the UCI Medical Rules invalid or ineffective.
• The UCI Medical Rules are not anti-doping rules and the World Anti-Doping Code is not applicable in this matter.
• There is no provision in the UCI Medical Rules for a B sample, nor analysis in a WADA accredited laboratory, nor a right to be heard.
• Tramadol and its metabolites were present in the Athlete's sample.
• The Athlete violated the UCI Medical Rules and the imposed fine and disqualification shall stand.

Therefore the Court of Arbitration for Sport decides on 5 June 2023 that:

1.) The appeal filed on 26 August 2022 by Nairo Alexander Quintana Rojas is dismissed.

2.) The Award is pronounced without costs with the exception of the CAS Court Office fee, already paid by Mr Nairo Alexander Quintana Rojas, and which is retained by CAS.

3.) (…).

4.) All other and further motions or prayers for relief are dismissed.

TAS 2022/A/9083 Agence Mondiale Antidopage (AMA) c. Agence Française de Lutte contre le Dopage (AFLD) & Jules Boscq

• Hockey sur glace
• Dopage (tuaminoheptane)
• Etendue du pouvoir d’examen du TAS en matière de sanction
• Détermination du degré de faute d’un athlète
• Application de la méthode d’évaluation du degré de faute à la version 2021 du CMA
• Eléments subjectifs d’évaluation du degré de faute
• Prescription d’un médicament par un médecin
• Application du principe de proportionnalité

In January 2022 the French Anti-Doping Agency (AFLD) reported an anti-doping rule violation against the ice hockey player Jules Boscq (19) after his sample tested positive for the prohibited substance Tuaminoheptane. The Athlete demonstrated that he suffered from a severe cold and that he had used prescribed Rhinofluimucil that contained Tuaminoheptane.

Consequently on 22 June 2022 the Athlete accepted a sanction of 2 months. The AFLD deemed that the violation was not intentional and that he acted with No Significant Fault or Negligence. 

Hereafter in August 2022 the World Anti-Doping Agency (WADA) appelaed the AFLD Decision with the Court of Arbitration for Sport (CAS). WADA requested to set asided the Appealed Decision and to impose a more severe sanction.

WADA accepted that the Athlete's violation was not intentional. Yet, it contended that the Athlete acted with a normal degree of fault and that accordingly an approproate sanction must be imposed.

WADA argued that the Athlete acted negligently because he failed to check his prescribed medication. The Athlete could not simply rely on the advice of his doctor and a simple internet search would reveal that the medication contained a prohibited substance.

The AFLD and the Athlete requested the Panel to uphold the Appealed Decision. They argued that there were sufficient grounds for the imposition of the sanction of two months.

The Panel assessed and addressed the evidence in this case and determines by majority that:

• The Athlete committed an anti-doping rule violation.
• The violation was not intentional.
• He demonstrated the source of the prohibited substance.
• His sports doctor erroneously prescribed the Rhinofluimucil that contained Tuaminoheptane.
• The Athlete failed to check his medication for prohibited substances.
• He acted with a normal degree of fault or negligence.
• There are grounds for an appropriate severe sanction.

Therefore the Court of Arbitration for Sport decides on 31 October 2023 that:

1.) The appeal filed by WADA is admissible.

2.) The Appealed Decision of 22 June 2022 rendered by the AFLD is annuled.

3.) Mr. Jules Boscq committed an anti-doping rule violation.

4.) Imposed on the Athlete is a period of ineligibility of 14 months starting on the date of the notification. The Athlete is credited for the time already served between 22 June 2022 and 22 August 2022.

5.) (...)

6.) (...)

7.) (...)

CAS 2022/ADD/53 International Weightlifting Federation (IWF) v. Vicky Annett Schlittig

• Weightlifting
• Doping (DHCMT)
• CAS ADD jurisdiction
• Burden and standard of proof
• No fault

1. Article 8.1.1 of the IWF Anti-Doping Rules (ADR) indicates that the IWF has delegated its responsibilities related to the adjudication of anti-doping matters to CAS ADD. Consequently, the CAS Sole Arbitrator has jurisdiction to adjudicate matters concerning the assertion of Anti-Doping Rule Violations (ADRVs).

2. Once an ADRV has been established by the IWF, the burden of proof then shifts to the athlete to prove either that the ADRV should not be considered as such, or that the ADRV was unintentional or that the applicable period of ineligibility should be reduced, suspended, or eliminated on the grounds provided for in the IWF ADR. The athletes’ burden of proof is on a balance of probability. When it comes to laboratory analysis, Article 3.2.2 of the IWF ADR makes it clear that WADA-accredited laboratories are presumed to have conducted sample analysis in accordance with the International Standard for Laboratories (ISL) and it is for the athlete to rebut such presumption by establishing first that a departure from the ISL occurred and second, that such deviation could reasonably have caused an Adverse Analytical Finding (AAF).

3. If, based upon the consensus of expert witnesses, the prior and subsequent negative tests and the low/trace amounts of DHCMT, in combination with the testimony and evidence as to the numerous contacts that occurred during the few days before the ADRV, it is probable that the athlete was subjected to inadvertent, transdermal administration of DHCMT that was not intentional, the athlete thus bears no fault.

In November 2022 the International Testing Agency (ITA), on behalf of the International Weightlifiting Federation (IWF), reported an anti-doping rule violation against the German weightlifter Vicky Annett Schlittig after she tested positive for the prohibited substance Dehydrochlormethyltestosterone (Turinabol) in a low concentration.

Hereafter the case was referred to the CAS Anti-Doping Division (CAS ADD) for a Sole Arbitrator first instance procedure. 

Following notification the Athlete alleged that there had been een mix up of samples because an incorrect name was mentioned on an annexured document with the Notification. She requested for the Laboratory Documentation Packages and DNA Analysis of the A and B samples.

The ITA claimed that the erroneous name in the annexure document was an inadvertent clerical mistake and that the samples in question had been provided by the Athlete. Thereupon the B-sample confirmed the A-sample whereas DNA Analysis confirmed the authenticity of her A and B samples.

The Athlete admitted the violation and denied the intentional use of the substance. After previous complaints she ultimately accepted the reliability of the testing results.

Supported by an expert witness the Athlete asserted that the Turinabol was present in her samples in its pure form and not with the typical metabolites. She argued that the Turinabol entered her system through transdermal transfer.

The Athlete explained that during the journey to the European U-23 Championships she had multiple opportunities for physical contact with other athletes, coaches, and support staff. She also had significant contact with athletes during the weight-in, training, lunch and diner.

In view of the evidence the Sole Arbitrator agrees that based upon the prior and subsequent negative tests and the low/trace amounts of Turinabol, in combination with the testimony and evidence as to the numerous contacts that occurred during the few days before the ADRV, that it is probable that Ms. Schlittig was subjected to inadvertent, transdermal administration of Turinabol that was not intentional, and thus that she bears no fault.

Therefore the The Court of Arbitration for Sport decides on 2 August 2023 that:

1.) The request for arbitration filed by the International Weightlifting Federation on 15 November 2022 is dismissed.

2.) Ms. Vicky Annett Schlittig is found guilty of an anti-doping rule violation in accordance with Article 2.1 of the International Weightlifting Federation Anti-Doping Rules (“IWF ADR”).

3.) Ms. Vicky Annett Schlittig has established in accordance with Article 10.5 of the IWF ADR that she bore No Fault or Negligence for the anti-doping rule violation. No period of Ineligibility is imposed.

4.) In accordance with Article 9 of the IWF ADR, all the competitive results of Ms. Vicky Schlittig obtained during the 2021 IWF European Junior Championships are Disqualified with all resulting Consequences, including forfeiture of any medals, points, and prizes.

5.) (…).

6.) (…).

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

Elias Kiptum Maindi, a retired athlete, and Paul Kibet Simbolei, a coach, were charged by the Kenyan prosecution in June 2021 with 12 counts of forgery and 1 count for conspiracy. The charges against John Katio Maluni were annuled after he died in a road accident.

Maindi, Simbolei and Maluni alleged that Kenyan athlete's were involved in a doping scheme. Between 2019 and 2020 they attempted to present a picture that there was a governement sponsored doping scheme to faciltate that Kenyan athletes could use doping.

For this purpose they provided to European media falsified documents. These documents were purportedly signed by officials from the Anti-Doping Agency of Kenya (ADAK) and Athletics Kenya (AK).

Elias Kiptum Maindi denied the charges and claimed that he was a whistleblower. He asserted that the deceased John Katio Maluni was responsible for this conspiracy.

Paul Kibet Simbolei showed no remorse and argued that he was misled by Maindi into this crime. He believed that he was collecting information for research.

Consequently the Kenya Magistrate's Court decided on 9 April 2024 to convict Elias Kiptum Maindi for 18 months. Paul Kibet Simbolei was found guilty and convicted for 2 years. He was released because he had already been detained for almost 3 years since April 2021.

Related cases:

• ADAK 2018 ADAK vs Henry Kiprotich Sang
  October 11, 2018
• ADAK 2021 ADAK vs Henry Kiprotich Sang
  July 15, 2021

In October 2018 the Anti-Doping Agency of Kenya (ADAK) reported an anti-doping rule violation against the Athlete Henry Kiprotich Sang for tampering with any part of the Doping Control.

ADAK had established that the medical information provided by the Athlete was forged in order to explain his positive test for 19-norandrosterone (Nandrolone).

The Athlete had attempted to demonstrate with falsified medical documents and false statements that his medical treatment in a hospital had caused the positive test. Yet, the Kericho County Referral Hospital denied that the Athlete had been in the hospital in October 2017.

Consequently the Kenya Sports Disputes Tribunal decided on 15 July 2021 to impose a 4 year period of ineligibility on the Athlete. Furthermore ADAK filed criminal charges against him.

Before the Kenya Chief Magistrate's Court at Kericho four witnesses were heard.

• Two officers of ADAK established that the Athlete's medical documents had been falsified and that he did not underwent medical treatment in the hospital in October 2017.
• Two officers of the Kericho County Referral Hospital confirmed that there was no record that the Athlete had attended the hospital in October 2017.

In view of the evidence in this case the Court deems that there was sufficient evidence that the Athlete had committed the crime. Therefore the Court decides on 20 March 2024 that the Athlete is found guilty as charged and convicted under section 215 of the Criminal Procedure Code (Chapter 75) laws of Kenya.

In October 2023 the Cricket Regulator, on behalf of the English and Wales Cricket Board (ECB), reported an anti-doping rule violation against the Cricket player Chris Wright after his A and B samples tested positive for the prohibited substance Ostarine.

After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the National Anti-Doping Panel.

The Athlete admitted the violation and denied the intentional use of the substance. He argued that he acted with No Significant Fault or Negligence and requested for a reduced sanction.

After investigations he had established that a bilberry supplement was the source of the prohibited substance. Analysis in a laboratory of the bilberry capsules from the supplement opened package confirmed the presence of Ostarine contaminants.

The Athlete asserted that he had checked the ingredients of medications and supplements he used and he had mentioned these on the Doping Control Form. Moreover Ostarine was not mentioned as ingredient on the label of this product.

In view of the evidence the Cricket Regulator, supported by the London Laboratory, agrees that the Athlete's violation was not intentional and that he had demonstrated how the prohibited substance had entered his system.

The Panel considered the Athlete's conduct in this case regarding his research of this bilberry supplement in question. As a result the Panel concludes that that he acted with No Significant Fault or Negligence.

Therefore the National Anti-Doping Panel decides on 21 May 2024 to impose a 9 month period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 19 October 2023.

Related case:

World Athletics 2021 WA vs Joel Maina Mwangi
June, 29, 2022

On 29 June 2022 the Athletics Integrity Unit (AIU), on behalf of World Athletics, decided to impose a 3 year period of ineligibility on the Kenyan Athlete Joel Maina Mwangi after he tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

In this case the Athlete gave a prompt admission, waived his right for a hearing, accepted a provisional suspension and the sanction proposed by the AIU. The imposed sanction of 3 years started on 23 June 2022 to 22 June 2025.

In May 2023 the AIU determined that the Athlete had participated and completed two World Athletics Online Courses:

• The Gender Leadership Online Course on 27 April 2023; 
• The Technical Officials Education and Certification System Level 1 Online Course on 4 May 2023.

Consequently the Athlete had violated the prohibition against participation during ineligibility. Following notification in June 2023 the Athlete gave a prompt admission, waived his right for a hearing and accepted the sanction proposed by the AIU.

The Athlete apologised for his mistake and explained that he was unaware that these Courses would be prohibited. The AIU considers that a reprimand and no additional period of ineligibility to be the appropriate consequences for the Athlete's violation.

Therefore World Athletics decides on 27 July 2023 to impose a reprimand on the Athlete.

In February 2022 the Athletics Integrity Unit (AIU), on behalf of World Athletics, reported an anti-doping rule violation against the Egyptian Athlete Ahmed Saber Mohamed Bakry after his sample tested positive for the prohibited substance Dexamehtasone.

Prior the Athlete had explained that he had received medical treatment for his injury. Thereupon in April 2022 the Athlete made an application for a retroactive TUE.

In June 2022 World Athletics granted the application for a retroactive TUE and the AIU anti-doping rule violation was cancelled. However in October 2022 the WADA TUE Committee decided to annul the approved retroactive TUE.

Without a valid retroative TUE the AIU again reported the anti-doping rule violation against the Athlete. Following notification the Athlete filed a statement in his defence and he was heard for the World Athletics Disciplinary Tribunal.

The Athlete explained with evidence that during 6 weeks Dexamethasone injections had been administered by medical professionals as treatment for his injury. He asserted that he acted with No Significant Fault or Negligence and requested for a reduced sanction.

The Athlete did not speak English, had received minimal or non-existent anti-doping education and had told his doctors that he was an Athlete. He honestly believed that he was taking a substance that was not prohibited and for genuine therapeutic reasons.

The AIU accepted that the violation was not intentional and that the Athlete underwent legitimate medical treatment. Yet, it contended that he failed to demonstrate exceptional circumstances, neither that he acted with utmost caution.

The Sole Arbitrator determines that it is undisputed that the Athlete's violation was not intentional. He deems that the Athlete acted with a degree of No Significant Fault or Negligence.

The Arbitrator considers that the Athlete was not an elite professional and did not speak English. He was inexperienced with computers and the internet and had to rely on the advice of a number of medical professionals. 

Further the Arbitrator assessed the circumstances regarding the granting and revokation of World Athletics' retroactive TUE. He concludes that this had caused substantial delays in this case and that this was not attributed to the Athlete.

Therefore the Sole Arbitrator decides on 7 November 2023 to impose a reduced period of ineligibility of 6 months and 20 days, starting on 31 October 2023 and continue until 27 April 2024.

iNADO Update (2024) 05/06 (26 June)
Institute of National Anti-Doping Organisations (iNADO)

Contents:

Speaking Up for NADOs & RADO Globally

• Athlete Representation Survey

Building a Supportive Community

• Basecamp- iNADO member collaboration and communication platform 
• iNADO Collection Campaign: NADOs Visual/Video Materials

Improving Practice Everywhere

• Save the Date- iNADO 2025 Workshop
• Outcome AFLD Webinar

Guiding Principles

• NADO Summit on the Guiding Principles for the Future of Anti-Doping

Monthly Features

• iNADO Job Vacancy- Chief Executive Office (M/F/X
• Members of the Governing Board visiting iNADO Office in Bonn

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