CAS ad hoc Division (OG London) 12/007 International Canoe Federation (ICF) v. Jan Sterba

Related case:
CAS OG_2012_05 Jan Sterba vs WADA
July 30, 2012

Canoe
Doping (ß-methylphenylethylamine)
BM as a specified stimulant
Application of Art. 10.5.2 in a case where Art. 10.4 applies
Measure of the sanction

1. By virtue of the written and oral evidence given by the different experts, the nature of the substance ß-methylphenylethylamine (BM) has been established to the satisfaction of the hearing panel as being a stimulant. The clear way the supplement is presented by its manufacturer also supports this conclusion. It follows that, under the clear wording of the 2012 Prohibited List, BM is a prohibited substance. However, BM is not expressly listed in Art. S6a of the prohibited list under Non-Specified Substances. As the final sentence of S6a provides that a stimulant not expressly listed in this section is a Specified Substance, BM is therefore a Specified Substance.

2. Arts. 10.5.1 and 10.5.2 of the ICF Anti-Doping Rules are meant to have an impact only in cases where the circumstances are truly exceptional and not in the vast majority of cases. Art. 10.5.2 should not be applied in cases where Arts. 10.3.3 or 10.4 apply, as those articles already take into consideration the athlete’s degree of fault for purposes of establishing the applicable period of ineligibility.

3. The facts that an athlete has established how the Specified Substance entered his or her body, that he acted from the very beginning in the utmost of good faith, that it is undisputed that he did not seek to gain a competitive advantage, that he compared the ingredients of the nutritional supplement with the 2012 Prohibited List, that he then sought the advice of an independent, qualified practitioner, that he declared the supplement on his Doping Control Form and that he is a senior athlete with a long-term clean anti-doping record, show to the requested comfortable degree of satisfaction of the hearing panel, a degree of fault to be so small that it justifies the full reduction of the period of ineligibility to no period, and the sanction of a reprimand.

In June 2012 the International Canoe Federation (ICF) has reported an anti-doping rule violation against the Czech Athlete Jan Sterba after his his A and B samples tested positive for the prohibited substance β-methylethylamine (BM).
The ICF considered this a substance included under the clause, “any other substances with similar chemical structure and similar biological effect(s), as expressed in the final sentence of category S6b of the 2012 Prohibited List.

On 9 July 2012 the ICF Doping Control Panel (ICF DCP) decided to impose a 6 month period of ineligibility on the Athlete. The Athlete appealed this decision with the ICF Court of Arbitration (ICFCA) which decided on 24 July 2012 to set aside the decision of the ICF DCP and ruled that “No anti-doping rule violation has been committed by Mr. Jan sterba” based on the conclusion the ICF has not established that the substance BM was to be considered a prohibited substance under the 2012 Prohibited List.

Hereafter on 29 July 2012 the ICF appealed the ICFCA decision of 24 July 2012 with the CAS ad hoc Division at the London Olympic Games because of the Athlete’s filed previously an application with the CAS ad hoc Division (CAS OG 12/007) about his participation at the Olympic Games.
The ICF requested the Panel to set aside the ICFCA decision of 24 July 2012 and to uphold the previous ICF DCP decision imposing a 6 month period of ineligibility on the Athlete.

In this case the Presence of the Substance BM in the Athlete’s samples was not disputed. Nor was disputed the structural similarity of BM to substances included in the 2012 Prohibited List at S6b (Levmetamfetamine and Phenpromethamine). It follows that, the issues to be decided by the Panel are:
a) Is BM a Prohibited Substance?
b) Had the Respondent violated the Anti-Doping Rules?
c) If so, what, in the circumstances of this specific case, should the appropriate sanction be?

The Panel finds that BM is a Specified Stimulant as a prohibited substance and the Athlete has committed an Anti-Doping violation under the ICF Rules.
Previously the Athlete has established how the Specified Substance entered his body through his use of the Supplement. It was accepted by the ICF that the Athlete did not intend to cheat and it is the Athlete’s first violation.

The Panel concludes, considering the Athlete’s degree of fault, that it is comfortably satisfied that the Athlete has acted from the very beginning in the utmost of good faith; that it is undisputed that he did not seek to gain a competitive advantage; that he compared the ingredients of the Supplement with the 2012 Prohibited List; that he then sought the advice of an independent, qualified practitioner; that he declared the Supplement on his Doping Control Form and that he is a senior athlete with a long-term clean anti-doping record, and so considers the Athlete’s degree of fault to be so small that it justifies the full reduction of the period of ineligibility to no period, and the sanction of a reprimand.

Therefore the ad hoc Division of the Court of Arbitration for Sport decides on 6 August 2012:

1.) The Application filed by the International Canoe Federation is partially upheld.
2.) The decision of the International Canoe Federation Court of Arbitration of 24 July 2012 is set aside.
3.) The Respondent, Mr Jan Sterba, is found guilty of the offence of using a Prohibited Substance under the International Canoe Federation Anti-Doping Rules.
4.) The sanction of a reprimand is imposed on the Respondent, Mr Jan Sterba.
5.) All other requests or motions for relief are rejected.

The 2004 Prohibited List International Standard / World Anti-Doping Agency (WADA). - Montreal : WADA, 2003.

- This List shall come into effect on January 1, 2004

CAS (Oceania registry) A2/2009 Australian Sports Anti-Doping Authority (ASADA), on behalf of Australian Sports Commission (ASC) and Golf Australia (GA) v. Daniel Nisbet

Golf
Doping (DHEA)
Possession of a Prohibited Substance
No Significant Fault or Negligence
Disqualification of results in competitions subsequent to commission of an anti-doping rule violation

1. In considering the defence of No Significant Fault or Negligence, evidence such as the young age and the inexperience of the athlete, his exemplary record, his good character, his full co-operation with the investigation authorities, the absence of consumption of any prohibited substance, the fact that the substance was acquired at an over-the counter retail pharmacy and not on the black market, the incorrect labelling of the bottle, or the fact that the substance was for the use of another person, can be taken into consideration.

2. So long as the decision-maker exercises its discretion in good faith, without bias, error, or undue influence, the provision according to which all competitive results obtained in competitions subsequent to commission of an anti-doping rule violation, through the commencement of any provisional suspension or ineligibility period, shall be disqualified unless fairness requires otherwise, extends to the decision-maker discretion to determine what fairness requires.

In August 2010 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the Athlete Daniel Nisbet for possession of the prohibited substance dehydroepiandrosterone (DHEA) after the Australian Customs seized several products in the baggage of the Athlete entering Australia.

ASADA on behalf of the Australian Sports Commission (ASC) and Golf Australia (GA) seeks from the Court of Arbitration for Sport (CAS) an Award imposing a sanction for the Athlete’s anti-doping violation.

The Sole Arbitrator Panel considers that Athlete was young and relatively inexperienced; there was no consumption of the prohibited substance; the substance was purchased at an over-the-counter retail pharmacy and not on the black market; and the product was purchased for a friend, a ‘non-athlete’.

Therefore the Court of Arbitration for Sport decides on 2 February that the appropriate saction is a 18 month period of ineligibility starting on 25 November 2009.

CAS (Oceania Registry) A1/2009 Australian Sports Anti-Doping Authority (ASADA) c. Peter Atkins

Surfing
Doping (stanozolol)
Athlete’s knowledge of the prohibition against the taking of performance enhancing drugs in sport
Failure of an athlete to give evidence before the CAS
Clarity of the rules and predictability of sanctions

1. The fight against doping in sport has a long and public history in Australia and throughout the world. An athlete who is an elite national competitor in his sport, a man of 33 years of age and a competitor in the sport for many years, would know of the prohibition against the taking of performance enhancing drugs in sport. An inference can clearly be drawn as to such knowledge from the fact that on the doping control test form signed by him he made no mention of his possession and use of the prohibited substance. It is inexplicable as to why he would omit mention of the use of that substance to those completing that form or to those conducting the test if it was the case that he had no knowledge that use of the substance was contrary to the Rules of the sport.

2. The failure of an athlete to give evidence before the CAS is not of itself evidence. The athlete cannot be compelled to give evidence and his silence cannot amount to an implied admission. He is entitled to take that course and it is not evidence of either guilt or innocence. In the criminal law of Australia and in a number of other jurisdictions where the standard of proof of guilt is beyond reasonable doubt, silence on the part of an accused person cannot fill in gaps in the prosecution case. However when the failure of an accused person to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given, the tribunal may take that failure into account only for the purposes of evaluating the evidence before it. A tribunal cannot, and cannot be required to, shut its eyes to the consequences of exercising the right not to give evidence in a case where assertions are made as to a state of knowledge or lack of knowledge on the part of an athlete.

3. Clarity and predictability are required so that the entire sport community are informed of the normative system in which they live, work and compete, which requires at the very least that they be able to understand the meaning of rules and the circumstances in which those rules apply. Therefore, if, when analysing different sets of rules, the interpretation of “individual sport” and “team sport” does not allow to clarify these definitions with a view of deciding whether or not the other members of a boat crew in which one member tested positive should also be sanctioned, the boat crew results should not be annulled.

In June 2009 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the Athlete after his sample tested positive for the prohibited substance stanozolol.
The Athlete elected to have the matter referred to a hearing by CAS who is given jurisdiction under the Anti-Doping Policy (ADP) of Surf Life Saving Australia (SLSA) to determine if a violation of the ADP has occurred.

The Sole Arbitrator CAS Panel has to rule about three issues:
a.) The jurisdictional issue – whether Mr. Atkins is bound by the Anti-Doping Policy (ADP) of SLSA;
b.) Whether, if Mr. Atkins was bound by the ADP, he committed Anti-Doping Rule Violations (the substantive dispute); and
c.) Whether, if Mr. Atkins committed Anti-Doping Rule Violations this had the effect of annulling the result of the Currumbin Barbarians Surf Lifesaving Club Men’s Open Surf Boat Team in the 2009 Australian Championships race (the sanction issue).

On 4 November 2009 the Court of Arbitration for Sports decides:

1.) The Court of Arbitration for Sport has jurisdiction to determine the substantive dispute by Arbitration.
2.) Peter Atkins is found to have committed two Anti-Doping Rule Violations in breach of Clause 7 of the Anti-Doping Policy of Surf Lifesaving Australia and Article 2 of the World Anti-Doping Code.
3.) The result obtained by Peter Atkins in the Men’s Open Surf Boat event conducted at the 2009 Australian Surf Lifesaving Championships is disqualified and any medals, points and prizes awarded to him are forfeited.
4.) Peter Atkins is ineligible to compete during the period commencing on 5 May 2009 and expiring at midnight on 4 May 2011.
5.) The result of the Currumbin Barbarians Surf Lifesaving Club Men’s Open Surf Boat Team in the 2009 Australian Championships race remains unchanged and the crew members Lyle Clark, Glen Williams, Randall Martin and Nick Parr are deemed to comprise the winning team.
(…).

CAS 2015/A/4155 World Anti-Doping Agency (WADA) v. Hasan Mohamed Mahmoud abd El-Gawad & Egyptian Anti-Doping Organization, award of 10 November 2015 (operative part of 14 September 2015)

• Athletics (hammer throw)
• Doping (metenolone)
• Condition for the reduction of a period of ineligibility (substantial assistance)
• Modification of the start date of the period of ineligibility

1. The applicable National Anti-Doping Organization (NADO) rules are particularly clear with respect to the conditions under which a sanction may be reduced. In this respect, after a final appellate decision or the expiration of time to appeal, NADO may only suspend a part of the otherwise applicable period of ineligibility with the approval of WADA and the applicable International Federation. Therefore, a reduction of a sanction in the event of alleged substantial assistance provided by an athlete shall be approved by WADA and the competent IF. Any deviation from a final decision imposing a period of ineligibility, if indeed at all possible, is of an exceptional nature and as a result must be considered as subject to very particular conditions that should be dutifully respected.

2. There is no opportunity to modify the start date of a period of ineligibility without valid basis.

On 10 November 2013 the Egyptian Anti-Doping Organization (EGY-NADO) decided to impose a 2 year period of ineligibility on the Athlete Hasan Mohamed Mahmoud abd El-Gawad after his sample tested positive for the prohibited substance metenolone.

On 29 January 2015 the EGY-NADO decided to reduce the period of ineligibility from 2 years to 18 months for the Athlete’s substantial assistance.

Hereafter in July 2015 WADA appealed the decision of the board members of EGY-NADO with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the appealed EGY-NADO decision and to impose a 2 year period of ineligibility on the Athlete.

WADA argued that EGY-NADO’s second decision (the “Appealed Decision”), shortening the period of ineligibility, makes no reference to the substantial assistance provisions of the NADO Rules. Such a basis for the Appealed Decision was only provided when WADA requested one, and the file contains no evidence of any such assistance having been provided.

Moreover, WADA asserted that neither WADA nor the IAAF gave their approval to a suspension of ineligibility, as required by the NADO Rules once a final appellate decision has been rendered or the appeal deadline has expired.

The Panel notes that the central issue at hand is whether the NADO had the ability, under its rules, to reduce the Athlete’s period of ineligibility in the manner that it did. In addressing this, it is relevant to consider the Respondents’ arguments with respect to mitigation and whether their failure to obtain the approval of WADA and the IAAF with respect to the Appealed Decision was of such a nature that the latter cannot be upheld, or rather a formal requirement of lesser significance.

The Panel finds that while the Respondents seek a modification of the start date of the period of ineligibility, there does not appear to be a valid basis for this. Indeed, were it not for flawed Appealed Decision which itself was not made in compliance with the NADO Rules, there would have not been grounds for the present appeal, and therefore no opportunity to revisit the issue of the start date of suspension which was validly decided in the NADO’s Initial Decision.

Therefore the Court of Arbitration for Sport decides on 10 November 2015 that:

1.) The appeal filed by the World Anti-Doping Agency on 24 July 2015 is upheld.

2.) The undated decision of the board members of the Egyptian Anti-Doping Organization reducing Mr. Hasan Mohamed Mahmoud abd El-Gawad’s period of ineligibility from two years to 18 months is set aside.

3.) Mr. Hasan Mohamed Mahmoud abd El-Gawad is sanctioned with a two-year period of ineligibility commencing on the date of this award with credit given for the time already served by Mr. Mahmoud abd El-Gawad between 18 October 2013 and 9 May 2015.

4.) (…)

5.) (…)

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

CAS 2015/A/4129 Demir Demirev, Stoyan Enev, Ivaylo Filev, Maya Ivanove, Milka Maneva, Ivan Markov, Dian Minchev, Asen Muradiov, Ferdi Nazif, Nadezha-May Nguen & Vladimir Urumov v. International Weightlifting Federation (IWF)

Related cases:

• CAS 2015_A_4319 BWF vs IWF
  January 29, 2016
• CAS 2016_A_4511 BWF vs IWF
  January 27, 2017
• CAS 2017_A_5127 BWF vs IWF
  December 18, 2017
  
  

• Weightlifting
• Doping (stanozolol)
• Condition to grant a stay of the arbitration proceedings
• Burden and standard of proof
• No significant fault or negligence under the 2015 WADAC
  Degree of fault

1. Under the applicable Swiss law, the alleged existence of criminal proceedings does not constitute a mandatory ground for staying an arbitration proceedings especially where no issue was raised by the appeal that it was beyond the competence of the CAS panel to determine on the evidence before it.

2. Under the applicable anti-doping rules, in order to benefit from an eliminated or reduced sanction, the burden of proof is placed on the athlete to establish that the violation of the anti-doping rules was not intentional and/or that he/she bears no fault or negligence or no significant fault or negligence. The standard of proof is the balance of probabilities. In this respect, while sabotage theories produced by an athlete - which could entitle an athlete to be absolved from any penalty- may be possible, they are not sufficient in the absence of evidence showing that it is more likely than not that a prohibited substance was introduced as a deliberate act of sabotage. On the other hand, if an athlete establish that the source of the prohibited substance is a contaminated supplement, the athlete will be entitled to benefit from the no significant fault or negligence regime.

3. Under the WADA Code 2015 adopted by the IFs, the standard sanction for a first anti-doping violation is 4 years ineligibility for a first offence. In cases where an athlete can establish no significant fault or negligence and that the detected prohibited substance came from a contaminated product, then the period of ineligibility shall be, at a minimum, a reprimand and no period of ineligibility, and at a maximum, two years of ineligibility, depending on the athlete’s degree of fault. This is substantially more generous to the athlete than the provision under which, in other cases where the athlete can establish no significant fault or negligence, the penalty may be reduced to a minimum of one half of the standard period of ineligibility, that is to say 2 years.

4. The fact for an athlete to comply with the directions of a team doctor in taking a product does not absolve him/her from all liability. Similarly, it is not sufficient for an athlete to declare on a doping control form in the most general and anodyne of terms the type of supplements he/she claimed to be taking. It behoves those who choose to enter on complicated regimes of supplements in an endeavour to maximise their performance to take the greatest care not only in what they take, but in how they declare it. However, the fact that a supplement had been used over a substantial period without any adverse consequences weighs substantially in the favour of an athlete. However, even if an athlete cannot be expected to carry out regular analysis of each new batch, there should be evidence of care being taken by an athlete to ensure the product was and continued to be appropriate.

Mr Demir Demirev, Mr Stoyan Enev, Mr Ivaylo Filev, Ms Maya Ivanove, Ms Milka Maneva, Mr Ivan Markov, Mr Dian Minchev, Mr Asen Muradiov, Mr Ferdi Nazif, Ms Nadezha-May Nguen and Mr Vladimir Urumov are international athletes in the weightlifting discipline affiliated to the Bulgarian Weightlifting Federation.

In March 2015 the International Weightlifting Federation (IWF) has reported multiple anti-doping rule violations against these Bulgarian Athletes after their A and B samples tested positive for the prohibited substance stanozolol. Analysis of the supplement Trybest capsules, administered to the Bulgarian Athletes on every training day, showed the presence of stanozolol.

On 10 June 2015 the International Weightlifting Federation (IWF) decided to impose a 9 month period of ineligibility on the Bulgarian weightlifting Athletes for committing a first violation and a 18 month period of ineligibility on the Athletes who have been sanctioned before.

Hereafter in July 2015 the Athletes appealed the IWF decisions of 10 June 2015 with the Court of Arbitration for Sport (CAS).
The Athletes accepted the test results and requested the Panel for a reduced sanction. They argued that they bear no fault or negligence and that the manufacturing process of Trybest had been sabotaged deliberately by some third party.

The IWF asserted, while it was accepted that on the balance of probabilities the Athletes had established that the reason for the AAFs was that the Trybest capsules contained some stanozolol, the evidence did not establish sabotage in the manufacture. The more likely explanation was that the manufacturer had for commercial reasons decided to add some stanozolol to the product. The Athletes’ submission disclosed no error in the view taken by the IWF Hearing Panel. The evidence produced in support of their allegation of sabotage was no more than speculation.

The Panel agrees that there is no evidence to show that it is more likely than not that the stanozolol was introduced as a deliberate act of sabotage rather than, for example, as a result of a commercial decision to try to enhance Trybest’s properties or as a result of contamination during the manufacturing process (eg by the use of inadequately cleaned machinery after it had been used for the making of capsules containing stanozolol for medicinal purposes).

The view of the Panel is that the Athletes have established on the balance of probabilities that the source of the stanozolol which gave rise to the AAFs were the Trybest capsules which they took in the days before the sample collection, but not that the capsules had been deliberately sabotaged.

The Panel accepts that this is a case in which a substantial reduction form the maximum penalty should be allowed to the Athletes. However it is unable to accept the proposition that the penalty should be reduced to a reprimand.

Therefore the Court of Arbitration for Sport decides on 6 October 2015 that:

1.) The appeal filed on 6 July 2015 by Demir Demirev Stoyan Enev, Ivaylo Filev, Maya Ivanova, Milka Maneva, Ivan Markov, Dian Minchev, Asen Muradov, Ferdi Nazif, Nadezhda-Mey Nguen, and Vladimir Uromov against the decision rendered by the IWF Hearing Panel on 10 June 2015 is dismissed.

2.) The decision rendered by the IWF Hearing Panel on 10 June 2015 is confirmed.

3.) (…)

4.) (…)

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

CAS 2015/A/3892 Roberto Alexander Del Pino v. Union Internationale Motonautique (UIM)

Aquabike
Doping (methylecgonine)
Athlete’s failure to establish any departure from proper procedures

An athlete who fails to establish any departure from proper procedures and from proper standards cannot overturn a decision of the Anti-Doping Panel of an International Federation.

On 25 October 2014 the Anti-Doping Panel of the Union of Powerboating (UIM) decided to impose a 2 year period of ineligibility on the Athlete Roberto Alexandder Del Pino after his A and B samples tested positive for the prohibited substance cocaine.

Hereafter in January 2015 the Athlete appealed the UIM decision with the Court of Arbitration for Sport (CAS). The Athlete requested to set aside the UIM decision and argued that not the proper procedures were followed for the sample collection, the chain of custody and testing.

Considering the Athlete’s arguments the Panel finds that he failed to establish any departure from proper porcedures so as to given credence to his denial of using the prohibited substance.

Therefore on 2 June 2015 the Court of Arbitration for Sport decides that:

1.) The appeal filed by the Appellant on 21 January 2015 against the decision of the Anti-Doping Panel of the Respondent dated 25 October 2014 is dismissed.
2.) The decision of the Anti-Doping Panel of the Respondent dated 25 October 2014 is confirmed.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.

CAS 2014/A/3869 World Anti-Doping Agency (WADA) v. Amit and National Anti-Doping Agency of India (INADA)

• Wrestling
• Doping (evading a doping test)
• WADA’s right of appeal and CAS jurisdiction
• Significant fault or negligence
• Commencement of the period of ineligibility

1. According to the applicable national ADR, in cases of alleged violation of the anti-doping rules involving national-level athletes, the decision taken by a first instance adjudicating body may be appealed to an appellate body. WADA shall also have the right to appeal to CAS with respect to the decision of the appellate body. The rules provide for WADA to have the right to a second appeal to CAS in cases in which it has already been the appellant before the appellate body but is dissatisfied with the decision taken.

2. The standard penalty for evading a doping test under the relevant rules is a period of two years ineligibility. This penalty may be mitigated in certain exceptional circumstances, notably if an athlete can establish on the balance of probability that he bears no significant fault or negligence. Mere conjecture, youth and inexperience do not constitute a sufficient basis for finding “No Significant Fault or Negligence”. Likewise, an athlete who evidently chose not to consult either his coach or any doctor before drinking an energising drink and who followed a wrong advice by evading the test because of his fear that he would fail it cannot establish no significant fault or negligence.

3. According to the applicable rules, where there have been substantial delays in the hearing process not attributable to the athlete, the period of ineligibility may start at an earlier date commencing as early as the date on which the anti-doping rule violation last occurred.

On 1 October 2013 the Anti-Doping Disciplinary Panel of India (ADDPI) decided to impose a 1 year period of ineligibility on the Athlete Mr. Amit for his refusal to sign the notification form and for running away from the from the doping control. WADA appealed this decision with the Anti-Doping Appeal Panel of India (ADAPI) which dismissed the appeal and decided on 11 December 2014 to uphold the sanction.

Hereafter in December 2014 WADA appealed both Indian decisions of 1 October 2013 and 11 December 2014 with the Court of Arbitration for Sport (CAS).
WADA requested the Panel to set aside both decisions and to impose a 2 year period of ineligibility on the Athlete. WADA argued that there was no compelling justification for the Athlete’s refusal and failure to submit to, and deliberate evasion of the sample collection.

The Sole Arbitrator concludes that there are no truly exceptional circumstances in this case for imposing a reduced sanction. While it might be easy to feel sorry for a young man who acted foolishly and later (after speaking to his coach) repented of his actions he has not shown that he was guilty of “No Significant fault or negligence” according Article 2.3 of the ADR. It follows that the WADA appeal must be allowed and the decisions of the Anti-Doping Panel dated 1 October 2013 and of the Anti-Doping Appeal Panel set aside. A period of two years ineligibility must be imposed.

Therefore the Court of Arbitration for Sport decides on 23 November 2015 that:

1.) The appeal of WADA is upheld.

2.) The decisions of the Anti-Doping Disciplinary Panel dated 1 October 2013 and of the National Anti-Doping Appeal Panel of India dated 11 December 2014 are set aside. Mr Amit is sanctioned with a period of two years Ineligibility commencing on 1 October 2014.

3.) All competitive results obtained by Mr Amit from 11 May 2013 through the commencement of the applicable period of ineligibility and in the period from 1 October 2014 until 30 September 2015 are disqualified, including the forfeiture of any titles, awards, medals, points and prize and appearance money.

4.) (…).

5.) (…).

CAS 2014/A/3868 World Anti-Doping Agency (WADA) v. Bhupender Singh and National Anti-Doping Agency of India (INADA)

• Wrestling
• Doping (evading a doping test)
• WADA’s right of appeal and CAS jurisdiction
• Significant fault or negligence
• Commencement of the period of ineligibility

1. According to the applicable national ADR, in cases of alleged violation of the anti-doping rules involving national-level athletes, the decision taken by a first instance adjudicating body may be appealed to an appellate body. WADA shall also have the right to appeal to CAS with respect to the decision of the appellate body. The rules provide for WADA to have the right to a second appeal to CAS in cases in which it has already been the appellant before the appellate body but is dissatisfied with the decision taken.

2. The standard penalty for evading a doping test under the relevant rules is a period of two years ineligibility. This penalty may be mitigated in certain exceptional circumstances, notably if an athlete can establish on the balance of probability that he/she bears no significant fault or negligence. Mere conjecture, youth and inexperience do not constitute a sufficient basis for finding “No Significant Fault or Negligence”. Likewise, an athlete who evidently chose not to consult either his/her coach or any doctor before drinking an energising drink and who followed a wrong advice by evading the test because of his/her fear that he/she would fail it cannot establish no significant fault or negligence.

3. According to the applicable rules, where there have been substantial delays in the hearing process not attributable to the athlete, the period of ineligibility may start at an earlier date commencing as early as the date on which the anti-doping rule violation last occurred.

On 1 October 2013 the Anti-Doping Disciplinary Panel of India (ADDPI) decided to impose a 1 year period of ineligibility on the Athlete Bhupender Singh for his refusal to sign the notification form and for running away from the from the doping control. WADA appealed this decision with the Anti-Doping Appeal Panel of India (ADAPI) which dismissed the appeal and decided on 11 December 2014 to uphold the sanction.

Hereafter in December 2014 WADA appealed both Indian decisions of 1 October 2013 and 11 December 2014 with the Court of Arbitration for Sport (CAS).
WADA requested the Panel to set aside both decisions and to impose a 2 year period of ineligibility on the Athlete. WADA argued that there was no compelling justification for the Athlete’s refusal and failure to submit to, and deliberate evasion of the sample collection.

The Sole Arbitrator concludes that there are no truly exceptional circumstances in this case for imposing a reduced sanction. While it might be easy to feel sorry for a young man who acted foolishly and later (after speaking to his coach) repented of his actions he has not shown that he was guilty of “No Significant fault or negligence” according Article 2.3 of the ADR. It follows that the WADA appeal must be allowed and the decisions of the Anti-Doping Panel dated 1 October 2013 and of the Anti-Doping Appeal Panel set aside. A period of two years ineligibility must be imposed.

Therefore the Court of Arbitration for Sport decides on 23 November 2015 that:

1.) The appeal of WADA is upheld.
2.) The decisions of the Anti-Doping Disciplinary Panel dated 1 October 2013 and of the National Anti-Doping Appeal Panel of India dated 11 December 2014 are set aside.
3.) Mr Bhupender Singh is sanctioned with a period of two years ineligibility commencing on 1 October 2014.
4.) All competitive results obtained by Mr Bhupender Singh from 10 May 2013 through the commencement of the applicable period of ineligibility and in the period from 1 October 2014 to 30 September 2015 are disqualified, including the forfeiture of any titles, awards, medals, points and prize and appearance money.
5.) (…).
6.) (…).

CAS 2014/A/3842 World Anti-Doping Agency (WADA) v. Confederação Brasileira de Futebol (CBF) & Erivonaldo Florêncio De Oliveira Filho

Football
Doping (stanozolol)
Standing to be sued
WADA standing to appeal to the CAS
Observance of the athlete’s right to laboratory documentation
Requirements related to a reduction of the standard sanction

1. Under well-established CAS jurisprudence, (at least) for international purposes the decisions of a national sport tribunal that, although independent in its adjudicating activity, is an integral part of the organisational structure of the national federation and does not pass the “stand-alone test”, must be considered to be the decisions of that national federation. This is exactly the same legal situation in public international law, where States are internationally liable for judgments rendered by their courts, even if under their constitutional law the judiciary is wholly independent of the executive branch. Even though the national sport tribunal may be “autonomous” from the national federation, the latter entrusts its disciplinary powers to the national sport tribunal which is an integral part of the organizational structure of the national federation. As a result, the national federation has standing to be sued.

2. According to the FIFA Statutes and to the FIFA ADR, WADA has the right to file an appeal before the CAS against an internally final and binding doping-related decision notably where the sanction was modified and reduced.

3. Evidence of the non-observance of an athlete’s right to laboratory documents is not brought where the athlete does not provide any evidence sustaining that he was not informed of his right to request copies of the A & B documentation package.

4. Under FIFA ADR, in order to establish that there were specific circumstances providing for the reduction of his sanction under No Fault or Negligence and No Significant Fault or Negligence, an athlete shall first prove (i) how the Prohibited Substance entered his system and also (ii) establish that he bears No Significant Fault or Negligence. Even if an athlete complies with the first requirement, he must fulfil his personal duty to ensure that no Prohibited Substance enters his body. The risks associated with food supplements in the sports framework are widely known in the sporting community. Where these risks were seemingly just ignored by the athlete, who blindly consumed them without the minimal care, the athlete did not discharge his burden of proof in this regard. Therefore, the athlete’s degree of fault or negligence, viewed in the totality of the circumstances, is clearly significant in relation of the anti-doping rule violation, and the standard sanction cannot be reduced.

On 9 April 2014 the Disciplinary Commission of the Superior Tribunal de Justiça Desportiva do Futebol (STJC), the Brazilian High Sports Court of Football, decided to impose a 2 year period of ineligibility on the Athlete Erivonaldo Florêncio De Oliveira Filho after his sample tested positive for the prohibited substance stanozolol.

The Athlete appealed the decision of 9 April 2014 and on 5 June 2014 the STJD decided to reduce the Athlete’s period of ineligibility to one year on the condition that the Athlete submits to monthly blood and urine tests which confirm that his body is free of any prohibited substances for a period of two years, failing which the Athlete’s initial two-year period of ineligibility would be reinstated.

Hereafter in December 2014 WADA appealed the STJD decision of 5 June 2014 with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the STJD decision and to impose a 2 year period of ineligibility on the Athlete. WADA argued that the Athlete acted with significant fault and failed to prove how the substance entered his body.

The Panel rejects the Athlete’s arguments and concludes that it is undisputed that the analysis of the Athlete’s sample established an anverse analytical finding of the substance stanozolol and thus finds that the Athlete committed an anti-doping rule violation under the FIFA Rules.

The Sole Arbitrator finds that the Athlete’s degree of fault or negligence, viewed in the totality of the circumstances, is clearly significant in relation of the anti-doping rule violation, and thus the sanction cannot be reduced under the FIFA Rules. In consequence, the sanction on the Athlete in this case is fixed at a 2 year period of ineligibility.

According to the rules applicable to this proceeding (i.e. the FIFA ADR), the Sole Arbitrator considers that the STJD erred by reducing the ordinary two-year ban to a one-year ban and by conditioning part of the sanction upon the player showing that his body would be clean for the total period of the sanction. There is no such possible sanction available to the Athlete under the applicable regulations.

Therefore the Court of Arbitration for Sport decides on 9 July 2015 that:

1.) The appeal filed by World Anti-Doping Agency against the Appealed Decision rendered by the Superior Tribunal de Justiça Desportiva of CBF on 4 December 2014 with regard to the athlete Mr. Erivonaldo Florêncio De Oliveira Filho is upheld.
2.) The Decision of the Superior Tribunal de Justiça Desportiva of the CBF dated 5 June 2014 is set aside.
3.) Mr. Erivonaldo Florêncio De Oliveira Filho is sanctioned with a two-year period of ineligibility, starting on 13 November 2013, and all results, medals, points and prizes obtained during this period of ineligibility are forfeited.
4.) (…).
5.) (…).
6.) All other prayers for relief are dismissed.