CAS 2012/A/2859 Alexander Ruoff v. Vlaams Basketballiga v.z.w. (VBL), award of 12 September 2012 (operative part of 24 August 2012)

• Basketball
• Doping (4-Methyl-2-Hexanamine)
• Starting date of the period of ineligibility
• Substantial delay in the disciplinary proceedings

---

1. To asses specifically if there are substantial delays not attributable to the player, the judging body has to take into account the following circumstances:
(i) the total duration of the disciplinary proceedings, starting from the date of sample collection till the date of notification of the decision by the disciplinary authorities;
(ii) the lapse of time of each separate phase of the disciplinary proceedings;
(iii) the complexity of the case, including the scope of the investigations;
(iv) the way in which the competent authorities have dealt with the case, including the extent to which the competent authorities did proceed expeditiously and
(v) the influence of the player on the course of the proceedings.

2. In general, a total duration of eight months in disciplinary proceedings with regard to an anti-doping violation does not constitute a substantial delay by itself. However, established multiple delays in separate phases of the judging process, such as the stay of the proceedings and the fact that the competent authorities could have proceeded in a more expeditious manner, whereas the case was not complex and the player

---

In October 2011 the Flanders Basketball Federation (VBL) has reported an anti-doping rule violation after the Athlete's sample tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).

As a result on 27 June 2012 the Disciplinaire Commissie voor Elitesporters (DCE) decided to impose a 6 month period of ineligibility on the Athlete starting on the date of the decision.
Here the DCE considered that there have been no substantial delays in the disciplinary proceedings or other aspects of the doping control and previously no provisional suspension was imposed on the Athlete.

Hereafter in July 2012 the Athlete appealed the DCE decision of 27 June 2012 with the Court of Arbitration for Sport (CAS).
The Athlete did not contest the anti-doping violation or the duration of the imposed sanction. He argued that there were substantial delays in the hearing process or other aspects of doping control not attributeable to the Athlete and that the DCE failed to bring forward the commencement of the period of ineligibility under the Rules.

The Sole Arbitrator observes that in general a total duration of 8 months in disciplinary proceedings with regard to an anti-doping violation does not constitute a substantial delay by itself.
However, the Sole Arbitrator is of the opinion that there are multiple delays in separate phases of the proceedings, which constitute the substantiality of the delay.
Accordingly, the Sole Arbitrator holds that, in view of all the circumstances of the case, the 6 months period of suspension must start on 26 April 2012, which is the date of the first assigned hearing in the VBL Internal proceedings.

Therefore the Court of Arbitration for Sport decides on 12 September 2012 that:

1.) The appeal filed by Mr Alexander Ruoff on 12 July 2012 against the decision of the “Disciplinaire Commissie voor Elitesporters” dated 28 June 2012 is partially upheld.
2.) The decision of the “Disciplinaire Commissie voor Elitesporters” of the “Vlaams Doping Tribunaal” dated 28 June 2012 is set aside only with respect to the starting point of the period of ineligibility imposed on Mr Alexander Ruoff.
3.) The six-month period of ineligibility imposed on Mr Alexander Ruoff shall start on 26 April 2012.
(…)
6.) All other and further claims or prayers for relief are dismissed.

CAS 2012/A/2843 International Association of Athletics Associations (IAAF) v. Hungarian Athletics Association (HAA) & Zoltan Kövago

• Athletics (discus)
• Doping (failure/refusal to submit to sample collection)
• Hearing de novo

---

Under the IAAF Competition Rules, the appeal is by way of a complete re-hearing and not by way of a review of the decision of the National Anti-doping Organization. The decision on the appeal must depend on the evidence made available to the CAS Panel, rather than a re-consideration of the evidence before the National Anti-doping Organization.

---

On 6 June 2012 the Doping Committee of the Hungarian National Anti-Doping Organisation decided that the athlete did not fail to fulfil his obligations under the IAAF Rules.

Hereafter in July 2012 the IAAF appealed the decision of the Hungarian Doping Committee and requested the Panel to set aside the decision of 6 June 2012 and to sanction the Athlete including disqualification of his results.

The IAAF asserted that there was no reason to disbelieve the clear account given by the Doping Control Officer, and supported by an Doping Control Officials. The DCO had no reason to invent a story and he was an extremely experienced DCO. The Athlete had been approached to be tested and had avoided giving the necessary sample by leaving the Gym and driving away.

Considering the circumstances the Panel was comfortably satisfied that the DCO did, as he said, make contact with the Athlete and that the Athlete then evaded the taking of an Out of Competition Doping Control Test by leaving the Gym and driving away. Accordingly the IAAF appeal must be allowed.

The Court of Arbitration for Sport decides on 18 October 2012:

1.) The appeal filed by the IAAF against the decision of 6 June 2012 rendered by the Doping Committee of the Hungarian National Anti-Doping Organisation is upheld.

2.) The decision of 6 June 2012 rendered by the Doping Committee of the Hungarian National Anti-Doping Organisation is set aside.

3.) Mr Zoltan Kövágó is sanctioned with a ban of two years starting from the date of the present award, with credit given for any period of suspension previously served.

(…)

6.) All further claims are dismissed.

CAS 2012/A/2773 International Association of Athletics Federations (IAAF) v. Hellenic Amateur Athletic Association (SEGAS) and Irini Kokkinariou

• Athletics (3000m steeplechase)
• Doping (Athlete’s Biological Passport, ABP)
• Blood manipulation detected through the ABP
• Aggravating circumstances
• Range of penalties under aggravating substances
• Standard of proof applicable to aggravating circumstances

---

1. The Athlete’s Biological Passport (ABP) may reveal doping on a single or several occasion(s). Therefore, longitudinal hematological profile need not contain multiple irregular figures in order to be used effectively. The haematological module of the passport is simply a tool that allows for the extrapolation of an individual’s blood data over time to assist in determining an anti-doping rule violation in the form of the use of a prohibited substance or method.

2. The IAAF provision related to aggravating circumstances (Rule 40.6) does not contain any specific requirements on how aggravating circumstances are to be detected, and absent such requirements, it must be presumed that the IAAF’s ABP program can ground claims under IAAF Rule 40.6, in much the same way as it can ground claims under IAAF Rule 32 (anti-doping violation).

3. IAAF Rule 40.6 allows for a range of penalties. A 4-year ineligibility period is therefore not automatically applied wherever aggravating circumstances in the context of anti-doping violation are identified. The imposition of an increased Ineligibility Period is at the discretion of the relevant body and a single example of aggravating circumstances may warrant the maximum period, while multiple examples may call only for a lesser penalty.

4. IAAF Rules do not specify the “higher” burden of proof applicable to aggravating circumstances. This “higher” burden of proof is unlikely to be higher than the standard that applies to the IAAF pursuant to IAAF Rule 33.1, given that the standard of proof on athletes to rebut an allegation of an anti-doping rule violation is generally lower than that of the alleging authority. As a result, the standard of comfortable satisfaction shall be applicable on both sides.

---

In August 2011, the IAAF initiated an investigation into a potential anti-doping rule violation by the Athlete Ms. Kokkinariou after her ABP, through application of the Adaptive Model, was identified as abnormal with a probability of more than 99%.

The IAAF reported an anti-doping rule violation against the Athlete after three Experts, upon reviewing the Athlete’s ABP, unanimously concluded that, in the absence of a satisfactory explanation, it was highly likely that she had used a Prohibited Substance or a Prohibited Method.

In September 2011 the Athlete filed an explanation in her defence to the Expert Panel. However after reviewing the Athlete’s explanation, the Experts remained of the unanimous opinion that there was no reasonable explanation for the Athlete’s blood profile other than the use of a Prohibited Substance or a Prohibited Method.

On 20 January 2012 the Hellenic Amateur Athletic Association (SEGAS) Disciplinary Committee decided to impose a 2 year period of ineligibility on the Athlete for the reported doping violation.

Hereafter in April 2012 the IAAF appealed the SEGAS decision with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the decision of 20 January 2012 and to impose a 4 year period of ineligibility on the Athlete due to aggravating circumstances under the Rules.

Considering the statements of the Experts regarding Ms. Kokkinariou’s ABP and ferritin levels the Sole Arbitrator finds that Ms. Kokkinariou committed a violation of IAAF Rule 32 under two separate categories of aggravating circumstances pursuant to IAAF Rule 40.6.

Ms. Kokkinariou has been found to have repeatedly used a Prohibited Substance over a protracted period as part of a doping scheme, and on the basis of this multiple triggering of IAAF Rule 40.6, the Sole Arbitrator finds that Ms. Kokkinariou’s Ineligibility Period should be extended to the maximum permitted period of four years.

Therefore the Court of Arbitration for Sport decides on 30 November 2012:

1.) The appeal filed by the International Association of Athletics Federations on April 16, 2012 against the decision of the Disciplinary Committee of the Hellenic Amateur Athletic Association of January 20, 2012 is upheld.

2.) The decision of the Disciplinary Committee of the Hellenic Amateur Athletic Association of January 20, 2012 finding Ms. Irini Kokkinariou guilty of anti-doping violation under IAAF Rule 32.2(b) is upheld.

3.) The decision of the Disciplinary Committee of the Hellenic Amateur Athletic Association of January 20, 2012 finding that there were no aggravating circumstances under IAAF Rule 40.6 are set aside.

4.) Ms. Irini Kokkinariou is held to have committed a violation of IAAF Rule 32 under aggravating circumstances pursuant to IAAF Rule 40.6.

5.) Ms. Irini Kokkinariou is declared ineligible to compete in any IAAF or IAAF Member competition for a period of four years starting from the date of this award. Credit shall be given to the period of provisional suspension served by Ms Irini Kokkinariou since October 27, 2011.

6.) All competitive results obtained by Ms. Kokkinariou on or after July 2, 2009 through to the commencement of her provisional suspension on October 27, 2011 are disqualified.

(...)

9.) All other requests for relief are rejected.

CAS 2012/A/2763 International Association of Athletics Federations (IAAF) v. Athletics Federation of India (AFI) & Akkunji Ashwini, Priyanka Panwar, Tiana Mary Thomas & Sini Jose, award of 30 November 2012 (operative part of 17 July 2012)

Related cases:

• ADDPI 2016_22 INADA vs Priyanka Panwar - Appeal
  September 8, 2017
• ADAPI 2017_194 Priyanka Panwar vs INADA - Appeal
  May 30, 2019

---

• Athletics
• Doping (metandienone; stanozolol)
• CAS scope of review
• Standard of proof of establishing how the prohibited substance entered the athletes’ system
• Reduction of sanction based on no significant fault or negligence
• Personal responsibility of the athlete
• Duty of care to establish no significant fault or negligence
• Starting date of the sanction

---

1. According to Article R57 of the CAS Code, the CAS has full power to review the facts and law of the case. However, prayers for relief challenging an appealed decision must be part of an appeal against that decision, not a part of the response to an appellant’s appeal, as they are otherwise beyond the scope of review of the CAS.

2. The standard of proof of establishing how the prohibited substance(s) entered the athletes’ systems, in accordance with Rule 33.2 of the IAAF Rules, is a balance of probability, a standard that has been held to mean that an athlete alleged to have committed a doping violation bears the burden of persuading the judging body that the occurrence of a specified substance is more probable than its none occurrence; alternatively that the innocent explanation provided is more likely than not the correct explanation.

3. A reduction of sanction based on no significant fault or negligence may be appropriate in cases where the athlete clearly establish that the cause of the positive test was the contamination in a common multiple vitamin purchased from a source with no connection to prohibited substances, but only where the athlete otherwise exercised due care in not taking other nutritional supplements.

4. CAS jurisprudence is clear that athletes cannot shift their responsibility on to third parties simply by claiming that they were acting under instruction or that they were doing what they were told. That would be all too simple and would completely frustrate all the efforts being made in the fight against doping.

5. Even in the case where athletes may not be deemed informed athletes due to a lack of anti-doping education, they must be aware of the basic risks of contamination of nutritional supplements. If athletes have been taking a cocktail of supplements despite the numerous warnings in place about taking supplements, have failed to contact the manufacturers directly or arrange for the supplements to be tested before using them, did not seek advice from a qualified doctor or nutritionist, have failed to conduct a basic review of the packaging of the supplements and any basic Internet research about the supplements, they cannot be deemed to have taken any of the reasonable steps expected of them and cannot establish on the facts that they bear no significant fault or negligence.

6. According to Rule 42.22 of the IAAF Rules, the CAS is bound by the IAAF Rules. Therefore, even if the first instance body has applied other rules regarding the starting date of the sanction, the CAS has to apply Rule 40.10 of the IAAF Rules which provides that the period of ineligibility shall start on the date of the hearing decision except where the athlete promptly admits the anti-doping violation. If the athletes have not provided any evidence that they accepted the anti-doping violation on a timely basis in writing, then the period of ineligibility shall start on the date of the decision.

---

In June and July 2011 the IAAF and the India National Anti-Doping Agency (INADA) reported several anti-doping rule violations against the four Indian Athletes after their A and B samples tested positive for the prohibited substances metandienone and stanozol (Ms. Tiana Mary Thomas) or the substance metandienone (Ms Sine Jose, Ms Akkunji Ashwini and Ms Priyanka Panwar).

In a consolidated procedure the Indian Anti-Doping Disciplinary Panel (ADDPI) decided on 23 December 2011 to impose a reduced 1 year period of ineligibility on the Athletes starting on the date of their provisional suspension.

Both the World Anti-Doping Agency (WADA) and the Athletes appealed the decision of 23 December 2011 and on 17 March 2012 the Indian Anti-Doping Appeal Panel (ADAPI) decided in a consolidated procedure to uphold the imposed 1 year period of ineligibility but backdated the start date on the date of the sample collection.

Hereafter in April 2012 the IAAF appealed the ADAPI decision with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the ADAPI decision of 17 March 2012 and to impose a 2 year period of ineligibility on the four Athletes.

It was the IAAF’s position that the Athletes have not met their burden of proving on the balance of probability that the used Kianpi Pills supplements were the source of their adverse analytical findings. The IAAF asserted that the Coach of the athletes had devised a separate sophisticated doping regimen, including administering the type of steroids for which the Athletes tested positive.

That doping regimen was put before the CAS. The IAAF also put forward expert evidence that the author of that separate doping regime was the same person who wrote the food supplement program for the Athletes for the period May to June 2011, a document that the Athletes had specifically testified to as being in the handwriting of the Coach.

The IAAF’s submission was that the Coach was prescribing the direct administration steroids – these did not get into the Athletes’ system by contamination.

The CAS Sole Arbitrator noted that the Athletes had a prohibited substance or substances in their bodies in breach of the IAAF Rules and as such were facing a 2 year period of ineligibility in accordance with the IAAF Rules. The Sole Arbitrator therefore had to determine the following:

A.) In accordance with Rule 40.5 of the IAAF Rules, in order for exceptional circumstances to apply, have the Athletes established how the prohibited substance(s) entered their systems?

B.) If the answer to (a) is yes, have the Athletes established that they bear “No Significant Fault or Negligence” entitling them to any reduction in the otherwise applicable 2 year sanction?

C.) If the answer to (b) is yes, what is the appropriate length of suspension to be imposed?

D.) In accordance with Rule 40.10, what is the correct start date for the Athletes’ period of Ineligibility?

The Sole Arbitrator notes that there is no evidence on the file that the Athletes deliberately ingested steroids. Further, the Sole Arbitrator also notes that the Athletes were in fact taking a number of supplements purchased from outside of the training centre which were not from official sources.

The Sole Arbitrator finds that the Athletes were in fact guilty in a number of respects of serious fault or negligence in their conduct and that they must now serve the full 2 year period of suspension. However, the Sole Arbitrator would like to stress again that the IAAF and the Athletics Federation of India need to take further positive action to educate Athletes in relation to the risks of taking supplements in India.

The Sole Arbitrator concludes that het period of ineligibility shall start on the date of the decision.

Therefore the Court of Arbitration for Sport decides on 30 November 2012:

1.) The appeal filed on 5 April 2012 by the International Association of Athletics Federations (IAAF) against the decision of the Indian Anti-Doping Disciplinary Panel issued on 17 March 2011 is admissible and upheld;

2.) The decision of the Indian Anti-Doping Disciplinary Panel of 23 December 2011 is set aside;

3.) Ms. Ashwini, Ms. Panwar, Ms. Mary Thomas and Ms. Jose shall be all declared ineligible for a period of two (2) years starting from the date of the present award, given credit of the period of their previous period of ineligibility and subsequent provisional suspension already served;

4.) All competitive results obtained by Ms. Ashwini and Ms. Panwar from 27 June 2011 and by Ms. Mary Thomas and Ms. Jose from 12 June 2011 until the commencement of their previous period of ineligibility shall be disqualified, with all resulting consequences, in accordance with IAAF Rule 40.8;

(…)

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

CAS 2012/A/2760 International Cycling Federation (UCI) v. Jana Horakova & Czech Cycling Federation (CCF)

Cycling
Doping (clenbuterol)
Enhancement of the performance with regards to non-specified substances
Duty of cooperation of the contesting party and burden of proof
Threshold requirement of showing how a prohibited substance entered the body
Utmost caution

1. Clenbuterol is an anabolic agent. Since anabolic agents are not considered as specified substances, the issue to know whether the ingestion of the prohibited substance was aimed at enhancing the performance or not is irrelevant.

2. The duty of cooperation of the contesting party (the antidoping organisation or the international federation), in cases in which a party (the rider and/or the national federation) is faced with a difficulty in discharging its burden of proof, is fulfilled when it submits and substantiates two alternative routes as to how the prohibited substance could have entered the rider’s system. However the contesting party does not have the burden of establishing that other alternative scenarios caused the adverse analytical finding, as the risk that the scenario of the party having the burden of proof cannot be ascertained remains with this party.

3. The requirement of showing how a prohibited substance got into one’s system must be enforced quite strictly since, if the manner in which a substance entered an athlete’s system is unknown or unclear, it is logically difficult to determine whether precautions have been taken in attempting to prevent such occurrence. The “threshold” requirement is to enable the tribunal to determine the issue of fault on the basis of fact and not mere speculation, in other words, not only the route of administration must be shown but the factual circumstances in which administration occurred must be proven. One hypothetical source of a positive test does not prove to the level of satisfaction required that such explanations are factually or scientifically probable.

4. The “utmost care” criterion has to be appraised based upon the diligence exercised when consuming nutritional supplements. The athlete does not demonstrate utmost care if he/she is unable to provide any documented evidence that he/she has requested specific information over the years – and not only a general statement after having been tested – from the companies that the nutritional supplements they are producing are free from any prohibited substance.

---

In October 2011 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Athlete Jana Horakova after her A and B samples tested positive for the prohibited substance clenbuterol.

The Athlete was already tested six days before and had proved negative. Also the Athlete’s hair analyse carried out in January 2012 by the accredited laboratory in Dresden proved negative.
De Disciplinary Board of the Czech Cycling Federation (CFF) accepted the results of the hair analyse and considered that a negligible low concentration of the prohibited substance found in her samples and the result of possible contamination in the available food.
Therefore on 20 January 2012 the CFF Disciplinary Board decided to acquit the Athlete, to lift the provisional suspension with disqualification of her results obtained in the competition where she was tested.

Hereafter in April 2012 the UCI appealed the decision of the CCF with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the CCF decision of 20 January 2012 and to impose a 2 year period of ineligibility on the Athlete. The UCI argued that the Athlete committed an anti-doping violation under the Rules, that she failed to explain how the substance entered her body and that she bore no fault or negligence.

The Panel agrees that the UCI has established that the Athlete had committed an anti-doping violation rule according to the Rules, since both A and B Samples have confirmed the presence of clenbuterol, a prohibited substance. The Panel finds that the Athlete has been unable to discharge her burden of proving under the Rules, on a balance of probability, how the Prohibited Substance had entered her system and that such ingestion had occurred without any (Significant) Fault or Negligence.

Therefore the Court of Arbitration for Sports decides on 2 November 2012:

1.) The appeal filed by the Union Cycliste Internationale on 5 April 2012 against the decision of the Disciplinary Board of the Czech Cycling Federation issued on 20 January 2012 is upheld.
2.) The decision dated 20 January 2012 rendered by the Disciplinary Board of the Czech Cycling Federation is set aside.
3.) Ms Jana Horakova is sanctioned with a period of two (2) years of ineligibility starting on the day of this Award. The period of provisional suspension from 27 October 2011 until 20 January 2012, i.e. 2 months and 25 days, shall be credited against the total period of two years.
4.) Ms Jana Horakova is disqualified from the 2011 UCI Mountain Bike and Trials World Championships.
5.) Ms Jana Horakova shall pay to the Union Cycliste Internationale (i) a fine of CHF 1,500 (one thousand five hundred Swiss Francs), (ii) an amount of CHF 2,500 (two thousand five hundred Swiss Francs) for the costs of the results management incurred by the Union Cycliste Internationale, (iii) an amount of CHF 480 (four hundred eighty Swiss Francs) for the costs of the B-sample analysis and (iv) an amount of CHF 400 (four hundred Swiss Francs) for the costs of the A-sample laboratory documentation package.
(…)
8.) All other or further claims are dismissed.

CAS 2012/A/2696 Steve Mullings v. Jamaican Anti-Doping Commission (JADCO), award of 4 March 2013

Related cases:
CAS 2012_A_2696 Steve Mullings vs JADCO (2012-05-04)
May 4, 2012
JADCO 2011 JADCO vs Steve Mullings
November 21, 2011

Athletics
Doping (furosemide)
Conditions to allow DNA testing
Factors to be considered in assessing the appropriate sanction in a second anti-doping violation case

1. DNA testing is complex and expensive, and it cannot be ordered whenever an athlete requests. Rather, the athlete should first be able to present some reasonable basis for questioning the lab results to justify any DNA testing.

2. The circumstances surrounding the first anti-doping violation are relevant factors to be considered in assessing what the appropriate sanction is in a second anti-doping violation case.

---

On 21 November 2011 the Jamaica Anti-Doping Commission (JADCO) Disciplinary Panel decided on 21 November 2011 to impose a lifetime period of ineligibility on the Athlete for his second violation after his A and B samples tested positive for the prohibited substance furosemide.

Hereafter in December 2011 the Athlete appealed the JADCO decision with the Court of Arbitration for Sport (CAS). In addition in January 2012 the Athlete also filed a Legal Aid Application to the CAS Court Office which was granted by CAS on 4 May 2012. The Panel dismissed the Athlete’s request for DNA testing of his samples.

The Athlete requested the CAS Panel for a reduced sanction and argued that the JADCO process of imposing the life ban was not careful and thorough. The Athlete asserted that the JADCO Disciplinary Panel did not fully consider all the facts and arguments; the Athlete was not permitted to provide evidence at the first hearing; and he disputed the test results and hearing in 2004 and the test results in 2011.

The Panel finds that there are no grounds to question the validity of reliability of the test results as evidence of doping and concludes that the Athlete committed a second anti-doping rule violation in 2011. The Panel accepts that the circumstances surrounding the first offense in 2004 are relevant factors to be considered in assessing what the appropriate sanction is in this case. However the Athlete did not produce any evidence that would lead the Panel to overlook its findings.

Therefore the Court of Arbitration for Sport decides on 4 March 2013 that:

1.) The appeal filed by Steve Mullings on 19 December 2011 against the decision issued by JADCO on 21 November 2011 is dismissed.
2.)The decision of JADCO imposing lifetime ineligibility on Steve Mullings is confirmed.
(…)
5.) All further and other claims for relief are dismissed.

CAS 2012/A/2696 Steve Mullings v. Jamaican Anti-Doping Commission (JADCO), order of 4 May 2012

Related cases:
CAS 2012/A/2696 Steve Mullings vs JADCO (2013-03-04)
March 4, 2013
JADCO 2011 JADCO vs Steve Mullings
November 21, 2011

Athletics
Request for legal aid
Conditions for granting legal aid

In application of the general principles of law, legal aid shall be granted to any natural person who requests it, provided that his/her income and capital are not sufficient to allow him/her to cover the costs of proceedings before CAS without drawing on that part of his/her assets necessary to support him/herself. The applicant shall however establish that his/her claim has a legal basis and that he/she would have begun the proceedings at his/her own expenses.

---

On 21 November 2011 the Jamaica Anti-Doping Commission (JADCO) Disciplinary Panel decided on 21 November 2011 to impose a lifetime period of ineligibility on the Athlete for his second violation after his A and B samples tested positive for the prohibited substance furosemide.

Hereafter in December 2011 the Athlete appealed the JADCO decision with the Court of Arbitration for Sport (CAS).
In addition in January 2012 the Athlete also filed a Legal Aid Application to the CAS Court Office.

The President finds that on the basis of the evidence submitted with the request for legal aid, it appears that the Athlete’s income is not sufficient to allow him to cover the costs of proceedings before the
CAS without drawing on that part of his assets necessary to support him and his family.
The ICAS President rules that the grounds of the appeal filed by Steve Mullings have a legal basis and it is accepted that the proceedings would be pursued by a reasonable litigant conducting his case at his own expense.

Therefore the President of the International Council of Arbitration for Sport decides on 4 May 2012:

1.) Grants legal aid to Steve Mullings in the procedure CAS 2011/A/2696 Steve Mullings v. Jamaican Anti-Doping Commission (JADCO) as follows:
a.) To bear the totality of the arbitration costs, if any, that the Athlete would be ordered to pay by the CAS at the end of the procedure, including the CHF 1,000 Court Office Fee which will be reimbursed, in due course;
b.) To bear the Applicant’s own travel and accommodation costs in connection with any CAS hearing up to a maximum amount of CHF 2,500.
2.) Declares that the present order is pronounced without costs.

TAS 2011/A/2684 Union Cycliste Internationale (UCI) c. Pasquale Muto & Comitato Olimpico Nazionale Italiano (CONI)
CAS 2011/A/2684 UCI vs Pasquale Muto & CONI

Cycling
Doping (EPO, ephedrine)
Passive legitimation of CONI
First or second violation
Aggravating circumstances
Duration of the suspension
Admissibility of a financial sanction in addition to the suspension
Calculation of the athlete’s fine

1. The ADR explicitly provides that a possible UCI appeal against a decision of a hearing panel of a national federation must be addressed not only to the athlete, but also to the federation and/or the body that has decided to delegate the latter. It further provides that when an arbitration panel finds that a body in question applied the regulations incorrectly, it would come up to condemn either the federation, or the body to pay the appeal costs. The national federation or the concerned body are therefore susceptible indebted in their liability to the UCI and the UCI must be able to assert its rights in this matter.
The body that rules as delegated by the federation, in this case CONI, has therefore passive legitimation and is a party as a respondent in the proceedings.

2. Although two separate anti-doping rule violations were committed, they constitute only one single first anti-doping rule violation when the notification of the first violation occurred after the second violation was committed.

3. However, as binding procedural application, besides being quite understandable, can lead to give the athlete the qualification of a second violation and establishing recidivism, whereas the disposition of this double violation is not questionable, this factual situation indeed constitutes aggravating circumstances.

4. Whereas the duration of the suspension can vary, it should be determined in compliance with the applicable rules and the principle of proportionality, depending on the case.

5. The International Federations may add a financial sanction to the suspension when the entire sanction complies with human rights and general principles of law, in particular the priniciple of proportionality. For all that they must verify that this addition is proportional regarding the duration of the suspension, the amount of the fine, adequate to the case.

6. As apparent in the regulatory provisions, the fine should be calculated on the basis of a full year’s net income the athlete normally is entitled to, and not the amount actually collected. This interpretation particularly arises from the term “normally”, because there is no provision for the calculation of the fine pro rata temporis, and finally, de context in which the provision was adopted as well the strived objective of this measure.

---

In May 2011 the International Cycling Union (UCI) has reported multiple anti-doping rule violations against the Italian cyclist Pasquale Muto after his samples - provided on two occasions on 25 March 2011 and on 10 April 2011 - tested positive for the prohibited substances Ephedrine and recombinant human erythropoietin (rhEPO). On 29 July 2011 the Tribunale Nazionale Antidoping del CONI (TNA-CONI), the CONI National Anti-Doping Tribunal, decided to impose a 2 year and 6 month period of ineligibility on the Athlete.

Hereafter in December 2011 the International Cycling Union (UCI) appealed the Italian decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the TNA-CONI decision of 29 July 2011 and to impose a 4 year period of ineligibility on the Athlete including a fine and payment of fees and costs. In this procedure CONI as party didn’t file a statement in their defence nor did the Athlete submit any response.

The UCI argued that the Athlete failed to establish how the prohibited substances entered his system, nor that the violation was unintentional. The UCI asserted that with aggravating circumstances imposing a sanction of 4 years is justified as the Athlete committed multiple anti-doping violations.

The Panel establish that the Athlete committed multiple anti-doping violations intentionally and he failed to provide an explanation for the presence of the prohibited substances in his system. The Panel concludes that the two anti-doping violations are to be considered as one single first anti-doping rule violation with aggravating circumstances and that a sanction of 3 years is appropriate in this case.

Therefore the Court of Arbitration for Sport decides on 14 September 2012 that:

1.) The UCI appeal of 28 December 2011 against the TNA-CONI decision of 29 July 2011 is admissible;
2.) The Decision No. 24/2011 of 29 July 2011 of TNA-CONI is partially modified;
3.) Mr Pasquale Muto is sanctioned with a period of ineligibility of 3 years starting from 3 May 2011;
4.) Mr Pasquale Muto is ordered to pay to the UCI a fine of EUR 19’250,-;
5.) Mr Pasquale Muto shall pay to the International Cycling Union CHF 2’500 as costs for the fees and the doping control results;
6.) The Decision No. 24/2011 of 29 July 2011 of TNA-CONI is uphold regarding the disqualification of the results obtained by Mr. Pasquale Muto.
7.) (…);
8.) (…);
9.) (…);
10.) All other or further claims are dismissed.

TAS 2011/A/2616 Union Cycliste Internationale (UCI) c. Oscar Sevilla Rivera & Real Federación Española de Ciclismo (RFEC)
CAS 2011/A/2616 UCI vs Oscar Sevilla Rivera & RFEC

Cycling
Doping (Hydroxyethyl starch - HES)
Additional instructional measures
Burden of proof
Elimination or reduction of suspension period
Degree of evidence
Possibility for an accused to change his defence
Elimination or reduction of the period of suspension under special circumstances
Degree of fault under Article 295 ADR
Examination of fault or negligence
Objective liability

1. Under application of the Articles R44.2 and R44.3 of the Code, the arbitral panel may proceed in establishing the identity and the professional profile of a witness who has not been able to testify by videoconference for lack of technical means.

2. Article 8 of the Swiss Civil Code decrees the burden of proof and determines on this basis who must assume the consequences of the evidence failure. When a party intends to allege a fact or dispute evidence provided by the other party, it can not confine itself to vague research and merely invite the arbitral panel itself to conduct investigative measures in order to fill the gaps in the evidence which it had to provide in support of its appeal.

3. The UCI Anti-Doping Rules (ADR) offers the Athlete the possibility to obtain an elimination or reduction of the period of ineligibility, provided that he proves how the specified substance entered his system, that the specified substance was not intended to improve sports performance or to mask the use of a performance enhancing substance and / or that he has not committed any significant fault or negligence. According to the Swiss Federal Court, there is nothing unbearable to impose on the cyclist who wants to obtain an cancellation or reduction of the disciplinary penalty the obligation to demonstrate how the prohibited substance entered his system. If it were sufficient for the person concerned to plead his ignorance in this matter in order to succeed that result, the fight against the doping plague would be singularly complicated.

4. With regard to the question of how the prohibited substance entered his system, the balance of probabilities is the degree of proof to be provided by the athlete. It is up to the latter to convince the arbitral panel that it is more likely that the alleged facts occurred as he claimed and not otherwise. With regard to the question for which purpose the prohibited substance was used, it is the responsibility of the athlete to establish that the substance was not intended to improve his sports performance or to mask the use of a performance enhancing substance to the satisfaction of the judging body, who will estimate the gravity of the accusations. It follows that the degree of evidence is more important than the standard of merely preponderance of probabilities, but less important than the standard of proof beyond a reasonable doubt. Corroborating evidence must also be produced in support of the athlete's assertions.

5. It can not be criticized ab initio for an accused to introduce all the for him available means of defence, if necessary by changing their content, without prejudice to the right of defence.

6. In order to benefit from the elimination or reduction of the suspension period in the matter of a specified substance, it is not necessary that the circumstances are exceptional. The Article 295 of the ADR provides only for special circumstances.

7. Under Article 295 of the ADR, in the matter of a specified substance, the degree of fault of the member is the criterion taken into account in assessing any reduction of the suspension period. There is accordingly no need to determine whether the athlete's fault or negligence is "significant", as provided for in Article 297 of the ADR.

8. The examination of fault or negligence must be made on the basis of the particular circumstances of each particular case. Necessarily the purpose must be taken into account - both repressive and educational - sought by the applicable disciplinary rules. It would be particularly unfair to sanction the same way, on the one hand, those who refuse to admit that they intentionally have taken doping products and contest the clear analysis results and, on the other hand, an athlete who has demonstrated satisfactorily how the specified substance has entered his system and that the substance was not intended to improve his sports performance or to mask the use of a substance to improves his performance.

9. An athlete has an absolute obligation to ensure that no prohibited substance enters his or her system. A medical treatment is not an excuse for the use of prohibited substances or prohibited methods, except in the case in accordance with the Therapeutic Use Exemption Rules. Athletes should be dissuaded, in particular when they are experienced, to follow blindly on the care or advice of doctors, especially when they are not specialized in sports medicine. The adopted attitude of "say nothing, see nothing, hear nothing” and not taking any precaution is incompatible with the role that athletes are expected to play in a sports world that is far too tainted by the doping plague.

---

In September 2010 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Spanish cyclist Oscar Sevilla Rivera after his A and B samples tested positive for the prohibited substance Hydroxyethyl starch (HES).

The Athlete produced during the proceedings two different lines of defence. At first he contested the test results for the substance HES. After the CNCDD had recommended a 2 year sanction in July 2011 the Athlete changed his defence and explained with additional medical evidence how the substance came into his system and for what purpose it was used. Considering the circumstances the CNCDD decided on 16 September 2011 to impose on the Athlete a 6 month period of ineligibility including costs and a CHF 1.500,- fine.

Hereafter UCI appealed the CNCDD decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to annul the CNCDD decision of 16 September 2011 and to impose a 4 year period of ineligibility on the Athlete including a fine and payment for costs.

Considering the evidence and statements the Panel concludes that the Athlete demonstrated more than probable that the alleged facts occurred as he claimed and not otherwise. Therefore he met the burden of proof in showing how the specified substance entered his system. The Panel also finds in view of the particular circumstances in this case that the Athlete’s degree of fault or negligence is high.

Therefore the Court of Arbitration for Sport decides on 15 May 2012 to impose on the Athlete a fine, the payment for costs and a 12 month period of ineligibility including the time already served.

CAS 2011/A/2479 Patrik Sinkewitz v. Union Cycliste Internationale (UCI), award of 13 September 2011 (operative part issued on 24 August 2011)

Related cases:
DIS 2011 NADA vs Patrick Sinkewitz
June 19, 2012
CAS 2011_A_2479 Patrik Sinkewitz vs UCI (2011-07-08)
July 8, 2011
CAS 2012_A_2857 NADA vs Patrik Sinkewitz
February 21, 2014
Swiss Federal Court 4A_178_2014 Patrik Sinkewitz vs NADA
June 11, 2014

Cycling
Doping (recombinant human growth hormone – rhGH)
Provisional suspension of a rider
De novo hearing before a CAS panel
Interpretation of Article 239 of the UCI Anti-doping rules

1. Under Articles 239 and 240 of the UCI Anti-doping rules, a provisional suspension based on an adverse analytical finding in respect of an A Sample shall be lifted if:
(i) the rider establish that the apparent anti-doping rule violation has no reasonable prospect of being upheld, or
(ii) the rider establish that he has a strong arguable case that he bears No Fault or Negligence for such violation, or
(iii) any conclusive analysis of the B sample does not confirm the A sample analysis.

2. Consistently with a longstanding CAS jurisprudence, the hearing before a CAS panel constitutes a hearing de novo, i.e. a rehearing of the case heard by the body whose decision is challenged. As a result, this implies that, even if a violation of the principle of due process (including for “lack of reasons” in the challenged decision), occurred in prior proceedings, it may be cured, at least to the extent such violation did not finally impair the appellant’s rights, by a full appeal to the CAS. In fact, the virtue of an appeal system which allows for a full rehearing before an appellate body is that issues relating to the fairness of the hearing before the tribunal of first instance “fade to the periphery”.

3. Both a literal and a systematic construction of Article 239 of the UCI Anti-doping rules show that this rule is to be narrowly interpreted. First, Article 239 clearly indicates that the lifting of the provisional suspension is an exception to its ordinary application; second, the UCI Anti-doping rules (Article 235) provide for the automatic imposition of a provisional suspension following an adverse analytical finding, which should therefore be maintained unless there is a clear indication that such finding does not stand reasonable chances to be confirmed. As a result, the simple casting of doubts as to the possibility that the anti-doping rule violation be confirmed is not sufficient to have the provisional suspension lifted.

---

In June 2007 the Bund Deutscher Radfahrer (BDR), the German Cycling Federation, has reported an anti-doping rule violation against the Athlete Patrik Sinkewitz after his sample tested positive for the prohibited substance testosterone. The Athlete admitted the use of testosterone, erythropoietin (EPO) and blood transfusions. Due to the Athlete’s substantial assistance the BDR Sports Court decided to impose a 1 year period of ineligibility on the Athlete.

In March 2011 the International Cycling Union (UCI) has reported to BDR a new anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance human growth hormone (hGH).

After notification the UCI ordered a provisional suspension in March 2011 and on 3 June 2011 the UCI Anti-Doping Panel dismissed the Athlete’s request to lift the UCI provisional suspension which was confirmed by the CAS Appeals Arbitration Division on 8 July 2011 ).

Hereafter the Athlete filed a new appeal against this decision of 8 July 2011 with the Court of Arbitration for Sport (CAS).

In his appeal Sinkewitz requests this Panel to lift the Provisional Suspension, imposed on him pursuant to Article 235 of the UCI ADR on the basis of the Adverse Analytical Finding reported following the A sample analysis. In support of his petition, the Appellant invokes several reasons, relating to the analyses performed on the samples he provided and the procedure which followed the reporting of the Adverse Analytical Finding. On the other hand, the UCI denies that the conditions of the lifting of the Provisional Suspension are met.

The Panel finds that the Athlete’s submissions do not show that the apparent anti-doping rule violation has no reasonable prospect of being upheld. In fact, the UCI’s case is supported by expert opinions, which contradict the expert reports filed by the Athlete, and support the UCI’s position that the hGH detection method endorsed by WADA and applied by the Laboratory is reliable and sufficiently validated, that it (and its application by the Laboratory) does not need to be determined as “fit-for-purpose” or require an extension of the scope of the Laboratory’s accreditation; that the different values detected in the A and in the B sample analysis are not significant and do not impact on the Adverse Analytical Finding; and that the second opinion issued by Prof. Cowan confirmed such Adverse Analytical Finding. This does not mean, the Panel underlines, that the Athlete’s contentions in the merits (challenging the Adverse Analytical Finding) are bound to fail and that UCI shall prevail. This point is for the competent disciplinary or arbitration body to decide. The Panel only notes that the UCI’s position, based on the analyses reports and the various expert opinions, is not unreasonable. Also the condition set by Article 239 of the UCI ADR for the lifting of the Provisional Suspension is consequently not satisfied.

Therefore the Court of Arbitration decides on 13 September 2011:

1.) The appeal filed by Mr Patrik Sinkewitz against the provisional suspension imposed on him by the Union Cycliste Internationale (UCI) on 18 March 2011, as confirmed by the decision issued on 3 June 2011 by the UCI Anti-Doping Commission, is dismissed.

(…)

4.) All other prayers for relief are dismissed.