CAS 2011/A/2479 Patrik Sinkewitz v. Union Cycliste Internationale (UCI), order of 8 July 2011

Related cases:

• DIS 2011 NADA vs Patrick Sinkewitz
  June 19, 2012
• CAS 2011_A_2479 Patrik Sinkewitz vs UCI
  September 13, 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)
• Request for provisional measures
  Irreparable harm

1. As a general rule, when deciding whether to grant a provisional measure, CAS considers the three below mentioned factors that are, in principle, cumulative:
(a) whether the measure is useful to protect the applicant from irreparable harm (“irreparable harm” test);
(b) whether the action is not deprived of any chance of success on the merits (“likelihood of success” test); and
(c) whether the interests of the applicant outweigh those of the opposite party and of third parties (“balance of interest” test).

2. The fact that a professional athlete is prevented from competing in sports events in general is not sufficient to justify a stay in itself. Since there cannot be any security for a professional rider, even if he/she belongs to the best ones, to win a competition and the respective prize money, the fact of perhaps losing prize money during a period of time does not create per se irreparable harm. Nobody can predict the outcome and results of a future competition.

3. It is quite common in the cycling sport that teams suspend immediately their riders in the event they are notified with a positive test result. If the rider has not given any concrete evidence that his/her team would lift the contractual suspension, neither that he/she would be able to participate in the competitions mentioned in his request, he/she has not necessarily established that he/she would be exposed to a risk of irreparable harm if the provisional measure was not granted.

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.

TAS 2010/A/2203 Mickael Larpe c. Fédération Française de Cyclisme (FFC)
TAS 2010/A/2214 Union Cycliste Internationale (UCI) c. Mickael Larpe & FFC

CAS 2010/A/2203 Mickael Larpe vs Fédération Française de Cyclisme (FFC)
CAS 2010/A/2214 UCI vs Mickael Larpe & Fédération Française de Cyclisme (FFC)

Cycling
Doping (rhEPO - Darbepoietin)
Range of CAS power for investigation
"Substantial" nature of the assistance to investigators
Admission
Suspension period for substantial assistance
Amount of the fine

1. An arbitration panel is not empowered to go beyond the parties' pleadings (sentence ultra petita).
A party may appeal to the Federal Tribunal in the event that the arbitral tribunal has awarded to a party more or different from it had requested (ultra or extra petita) and those who it failed to award on the main point of the claim or counterclaim.

2. Even if the responses provided by the anti-doping authorities to the questions of the arbitral Panel doesn’t allow to rule unreservedly about the "substantial" nature of the assistance provided by the athlete to the investigators, this assistance can not be ignored and must therefore be taken into consideration in assessing the duration of the suspension granted to the athlete. Accordingly, the “substantial” nature of the assistance is at least reinforced by the athlete’s statements to the investigators, and that it at least should lead to the opening of investigations and indictments of third parties for the use of doping products.

3. An arbitration panel can not retain that an athlete has admitted voluntarily having committed an anti-doping rule violation solely on the basis of a statement made by this athlete that he would indeed have "voluntarily" having admitted "committed an anti-doping rule violation" and that this admission "constitutes the only reliable evidence of the violation at the time of the admission", without further evidence confirming the statement in this case.

4. Contrary to what is provided for in the case of No Fault or Negligence, No Significant Fault or Negligence or Admission, the period of ineligibility is not reducible in the case of "suspended sanction" but may only be imposed conditionally. Also, in the system of elimination or reduction of the period of ineligiblility under exceptional circumstances, the "suspended sanction" must be distinguished from the "reduction of period of ineligibility".

5. According to the CAS jurisprudence, the fixed fine in accordance with Article 326 paragraph 1 letter A of the ADR is based on the net annual income to which the rider is normally entitled for the whole year and not on the amount actually received.

In May 2010 the International Cycling Union (UCI) has reported an anti-doping rule violation against the French cyclist Mickael Larpe after his samples tested positive for the prohibited substances Darbepoetin (dEPO).
On 25 June 2010 the National Disciplinary Commission of the French Cycling Federation (FFC) decided to impose a 2 year period of ineligibility on the Athlete with 3 months as suspended sanction including costs and a fine to be determined by the UCI.

Hereafter in July and August 2010 both the Athlete and the UCI appealed the FFC decision of 25 June 2010 with the Court of Arbitration for Sport (CAS).
The UCI requested the Panel to uphold the imposed sanction and to order the payment for costs, fees and a € 12.919,20 fine.
The Athlete requested to Panel for a more substantial reduction of the sanction and argued that he had provided substantial assistance to the authorities about the use and trafficking of doping.

Considering the Athlete’s substantial assistance the Panel finds that a more generous suspension must be granted with a revision of the suspended sanction and a reduced fine.
Therefore the Court of Arbitration for Sport decides on 24 March 2011 to impose on the Athlete a 2 year period of ineligibility with 6 months as suspended sanction and a € 6.460,- fine.

• TAS 2010/A/2141 M. c. Fédération Royale Espagnole de Cyclisme (RFEC) & TAS 2010/A/2142 Union Cycliste Internationale (UCI) c. M. & RFEC, sentence du 29 mars 2012
• CAS 2010/A/2141 M. vs Fédération Royale Espagnole de Cyclisme (RFEC)
  CAS 2010/A/2142 UCI vs M. & Fédération Royale Espagnole de Cyclisme (RFEC)
  
  

Related cases:

• CAS 2010_A_2141 M. vs RFEC | UCI vs M. & RFEC - Partial Award 1
  September 14, 2010
• CAS 2010_A_2141 M. vs RFEC | UCI vs M. & RFEC - Partial Award 2
  June 8, 2011
  
  

• Cycling
• Doping (EPO)
• Dynamic effect of adherence to a regulation
• Impact of defrosting a sample on the analysis results
• Consequence of the late submission of the second opinion of the third party laboratory on the anti-doping procedure
• Principle and calculation of the fine
• Proportionality of the fine

In July 2009 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Spanish cyclist M. after his A and B samples tested positive for the prohibited substance Erythropoietin (EPO). On 30 April 2010 the RFEC deciced to impose to a 2 year period of ineligibility on the Athlete including a fine.

Hereafter in June 2010 both the Athlete and the UCI appealed the RFEC decision with the Court of Arbitration for Sport (CAS).

The Athlete argued that there was a violation of the right to be heard and that other procedural violations occurred in the first instance proceedings before the El Comite Nacional de Competicion y Disciplina Deportive (CNCDD) of the RFEC. The Athlete asserted - supported by expert witnesses - that there were departures of the applicable Rules and Standards and as a result that a false positive occurred.

Based on the evidence in this case the Panel finds that the test results are valid and show the presence of a prohibited substance in the Athlete’s samples. These samples were analyzed in accordance with the applicable Rules and Standards in the WADA accredited Madrid Lab.

Accordingly the Panel concludes that the Athlete committed an anti-doping rule violation and holds that he failed to demonstrate that the alleged irregularities and departures could lead to an abnormal test result. The Panel deems that the late filing of the second opinion by the Lausanne Lab for introduction in the case does not justify the annulment of the testing result. Further the Panel upholds the calculation of the fine imposed on the Athlete in first instance which was disputed by the UCI.

Therefore the Court of Arbitration for Sport decides on 29 March 2012:

1.) The Athlete’s appeal is dismissed.

2.) The appeal filed by the UCI is admissible and partially upheld.

3.) The Athlete’s period of ineligibility shall begin on 31 July 31 2009 and shall end on 31 July 2011.

4.) All the results obtained by the Athlete from 26 June 2009 until 31 July 2009 must be canceled.

5.) The decision of 30 April 2010 rendered by the CNCDD of the RFEC is confirmed.

6.) (...)

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

• TAS 2010/A/2141 M. c. RFEC & Arbitrage TAS 2010/A/2142 UCI c. M. & RFEC, ordonnance du 14 septembre 2010
• CAS 2010/A/2141 M. vs RFEC
  CAS 2010/A/2142 UCI vs M. & RFEC
  
  

Related cases:

• CAS 2010_A_2141 M. vs RFEC | UCI vs M. & RFEC - Final Award
  March 29, 2012
• CAS 2010_A_2141 M. vs RFEC | UCI vs M. & RFEC - Partial Award 2
  June 8, 2011
  
  

• Cycling
• Doping
• Right to intervene before CAS
• Joining the procedures

In July 2009 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Spanish cyclist M. after his A and B samples tested positive for the prohibited substance Erythropoietin (EPO).

On 30 April 2010 the RFEC decided to impose a 2 year period of ineligibility on the Athlete including a fine. Hereafter in June 2010 both the Athlete and the UCI appealed the RFEC decision with the Court of Arbitration for Sport (CAS).

In this partial award CAS assessed different issues raised by the parties. Thereupon the President of the Appeals Arbitration Division decides on 14 September 2010:

1.) The request to intervene in the procedure TAS 2010/A/2141 filed by the UCI is accepted.

2.) The procedures TAS 2010/A/2141 and TAS 2010/A/2142 are consolidated before a single arbitration panel.

3.) The manner of appointment of the two co-arbitrators will be determined according to the agreement between the parties
within a time period later to be decided by the CAS Court Office. Failing in this agreement within the time limit, the co-arbitrators will be appointed by the President of the Appeals Arbitration or his deputy.

4.) The President of the Arbitral Panel shall be appointed by the President of the Appeals Arbitration Division or his deputy.

5.) The time limit for the appeals remain suspended until further notice from the CAS Court Office.

6.) This decision is without costs.

TAS 2010/A/2101 Union Cycliste Internationale (UCI) c. A. & Fédération Française de Cyclisme (FFC)
CAS 2010/A/2101 UCI vs A. & FFC

Cycling
Doping (Norfenfluramine)
Applicable law
Counterclaim
Relationship between two contradictory procedural arbitration rules
Admissibility of new facts before CAS
Duty of vigilance
Fine
Member protection law: proportionality and equal treatment

1.) According to Articles 372 and 374 of the UCI Anti-Doping Rules (ADR) (version 2009), the 2009 ADR came into force when the rider tested positive. Regarding the rider’s ability to take note of the 2009 ADR, it is not decisive that it has not been published on the FFC website, as far as (1) The ADR rules apply to all licentiates; (2) the ADR is applicable to all cycling competitions and the participation to a cycling competition, for any reason whatsoever, constitutes acceptance of all the provisions of the applicable regulations; (3) The rider’s licence must contain certain information and obligations which the rider has to comply with under the UCI Rules and declares that he has read or has had the opportunity to become acquainted with these statutes and regulations.

2.) A counterclaim is a claim for the purpose other than an appeal and not simple a response to the appeal. In this context, the rider's claim to annul the 2 year suspension and the disqualification decided in the first instance, must be qualified as a real counterclaim and not simple response considering the sole purpose of the UCI appeal is the claim for the sanction in the form of fine and reimbursement of the costs incurred by the UCI for the anti-doping control.

3.) The problem of the relationship between two contradictory procedural arbitration rules adopted by the parties must be settled case by case, according to the facts in this case, since it is a matter of determining which of the two procedural rules required by the parties and freely adopted must prevail.
In this regard, it is significant that at the time of adopting Article 335 of the ADR, which clearly implies the possibility for the respondent to file a counterclaim, the UCI was not willing to depart from the provisions of the CAS Code, but rather to harmonize its procedural rules relating to an appeal to CAS with those of CAS, since at that time Article R55 of the Code permitted counterclaims.
Moreover, CAS has a legitimate interest in considering its imperative procedural rules in the field of an appeal, Since Article R65 of the Code provides that the appeal procedure is in principle free of charge in international disciplinary disputes. Finally, for the reasons of equality between different sports disciplines, it would be unjust not to apply Article R55 of the Code in its revised version to all appeals filed since it came into effect (January 2010). For these reasons, only the present effective Article R55 of the Code is applicable and a counterclaim is in principle inadmissible.

4.) Exceptionally, new facts may be taken into consideration when the invoking party can prove that these facts are potentially decisive for the outcome of the dispute which already existed at the time of his claim or his appeal but which he could not have known, even when exercising the utmost diligence.
In the light of the general principles of procedure applicable to the invocation of new facts, of the practice of the Federal Tribunal, and taking into account the principle of immutability of the dispute and the principle of the double degree of jurisdiction according to which the dispute submitted to the appellate judge according to which the dispute before the appellate judge must normally be identical to the case before the court of first instance, the possibility of admitting new facts on appeal with CAS must be rigorously assessed.

5.) Given the multiple obligations of riders according to the anti-doping fight, and the great caution required of them with food, drinks, medical treatments and use of dietary supplements, a rider must exercise his caution related to his entourage (coaches, friends, family, acquaintances) without this being regarded as mistrust. In this regard, athletes are also responsible for the actions of their loved ones, since they may very well put them unintentionally in a risky situation.

6.) The 2009 ADR version, including Article 326, is applicable, the principle of the fine is therefore indisputable. The introduction of fines in the regulations finds its reason in the fight against doping, the financial penalties may have an additional deterrent effect in this respect.

7.) In Swiss law, an association enjoys an important freedom considering its organisation and in the regulation of its activities. This autonomy of associations nevertheless has certain limitations.
Thus, under Swiss law in accordance with "rights of protection", the legitimate interest of the members is protected in ensuring that the association complies with the law, on the one hand, by the right of association and, on the other hand, by various general principles and fundamental values of the Swiss legal system. The rights of protection are applicable to disciplinary sanctions imposed by a sports association including, among other things, the principles of proportionality and equal treatment. In accordance with the principle of proportionality, the financial situation of the rider may justify the reduction of the fine to half of the net income used as a basis for calculation.

In October 2009 the International Cycling Union (UCI) has reported an anti-doping rule violation against the French elite level cyclist A. after his A and B samples tested positive for the prohibited substance norfenfluramine.
On 2 February 2010 the National Disciplinary Commission of the French Cycling Federation (FFC) decided to impose a 2 year period of ineligibility on the Athlete without a fine or fees.

Hereafter in April 2010 the UCI appealed the FFC decision of 2 February 2010 with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to uphold the imposed 2 year period of ineligibility and in addition under UCI Rules to order the payment of a fine including fees and cost for the anti-doping control.

The Athlete A. requested the Panel to annul the imposed sanction as countrerclaim. He rejected the claim for imposing a fine and asserted that he acted without fault or negiligence due to the violation was the result of the unintentional use of medication prescribed for his mother. Also he disputed the validity of the UCI Anti-Doping Rules.

The Panel concludes that the Athlete failed to show new evidence in his counterclaim. Also the Panel considers that the counterclaim is dismissed due to it is inadmissible under the current applicable CAS Code. The Panel finds that under UCI Rules the Athlete has to pay to UCI fees and costs for the anti-doping control and a proportional calculated fine.

Therefore the Court of Arbitration for Sport decides on 18 February 2011:

1.) The appeal of the International Cycling Union is partially accepted.
2.) The decision No 38/09 of 2 February 2010 of the FCC National Disciplinary Commission is partially reformed.
3.) A. is ordered to pay the UCI an amount of EUR 10,500, as fine.
4.) A. is ordered to pay the UCI an amount of CHF 1,000, as cost and fees for the anti-doping control.
5.) A. is ordered to pay the UCI an amount of EUR 400, as cost for the analysis of the B sample.
6.) A counterclaim is inadmissible.
7. (...).

CAS 2009/A/2011 Stephan Schumacher v. International Olympic Committee (IOC)

Related cases:
IOC 2009 IOC vs Stefan Schumacher
November 18, 2009
CAS 2009_A_1820 Stefan Schumacher vs UCI
January 22, 2010

Cycling
Doping
Allocation of the costs incurred by the parties in case of withdrawal of the appeal

In deciding which party bears the parties’ costs and the measure of the contribution, a CAS panel has to take into account the outcome of the arbitration, the conduct of the parties and the financial resources of the parties. A withdrawal of the appeal, which therefore renders the decision appealed against unchallenged, is a situation which de facto corresponds to a dismissal of the appeal aiming at setting aside the decision; as to the conduct of the parties, a better-timed withdrawal can avoid an unnecessary preparation and counsel’s costs by the respondent. Last, the panel controls if the financial resources of the respondent clearly outweigh those of the appellant.

Mr. Stephan Schumacher is a German Athlete competing in the Mens’ Individual Time Trial cycling event at the Beijing 2008 Olympic Games. In January 2009 the International Olympic Committee (IOC) decided to perform further testing on the Athlete’s samples collected during the 2008 Olympic Games, due to a fully validated test to detect CERA became available.

In April 2009 The IOC reported an anti-doping rule violation against Stefan Schumacher after his 2008 A and B samples tested positive for the prohibited substance methoxy polyethylene glycol-epoetin beta (CERA).
On 18 November 2009 the IOC Disciplinary Commission concluded that he has committed an anti-doping rule violation and decided to disqualify the Athlete from Men’s Individual Time Trial event of the Beijing 2008 Olympic Games. The UCI was requested to modify the disqualification accordingly and to consider any further action within its own competence.

Hereafter in December 2009 the Athlete appealed the IOC decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the IOC decision and to be declared not guilty of an doping violation during the Beijing 2008 Olympic Games.

On 22 January 2010 in the CAS proceedings (CAS 2009/A/1820 Stefan Schumacher vs UCI) the CAS Panel decided to impose a 2 year period of ineligibility on the Athlete.

In March 2010 the Athlete informed CAS that he wished to withdraw his appeal in this case (CAS 2009/A/2011) referring to the decision and imposed sanction after the CAS proceedings in CAS 2009/A/1820.

Therefore on 6 May 2010 the Court of Arbitration for Sport rules:

1.) The withdrawal of the appeal filed by Mr Stephan Schumacher against the decision issued on 17 November 2009 by the Disciplinary Committee of the International Olympic Committee is acknowledged.
2.) The procedure CAS 2010/A/2011 Schumacher v/IOC is terminated and deleted from the CAS roll.
3.) This award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss Francs) paid by Mr Stephan Schumacher, which is retained by the CAS.
4.) Mr Stephan Schumacher is ordered to pay CHF […] to the International Olympic Committee as a contribution towards the legal and other costs incurred in connection with these arbitration proceedings.
5.) All other prayers for relief are dismissed.

TAS 2008/A/1675 Union Cycliste Internationale (UCI) c. Ariel Maximiliano Richeze et Union Ciclista Republica Argentina (UCRA)
CAS 2008/A/1675 UCI vs Ariel Maximiliano Richeze & Union Ciclista Republica Argentina

Cycling
Doping (stanozolol)
Contamination of a food supplement
Significant Negligence
Beginning of suspension period

1. According to the constant jurisprudence, CAS has posed the principle that the athlete is responsible for the presence of doping product in his or her body. Every athletes has the advantage of the presumption of innocence until the presence is established of a prohibited substance in his or her body. If those conditions occur, the athlete’s intention for doping use and guilt are presumed.

2. Considering the duty to warn resulting from and in accordance with the WADA Code and the UCI Anti-Doping Rules, the cyclists are responsible for the ingredients of the food supplements they decide to use. A rider who has made only a few summary verifications before consuming a food supplement containing a prohibited substance with using constitutes a violation and entails a presumption of intention to use doping, has acted at fault or negligence. In this case, the rider’s negligence is significant, therefore under the UCI Anti-Doping Rules the conditions are not fulfilled for reduction to justify a 2 year suspension.

3. In accordance to the WADA Code and the UCI Anti-Doping Rules, with sense of justice, the starting point of the 2 year suspension must be fixed on the date the riders was suspended by his team despite the rider was reinstate hereafter by his team even though the disciplinary proceedings were not terminated with consequently the risk of a suspension. The fact that the rider has not been able, in spite of his temporary reinstatement, to develop his sports career as he could have done under normal circumstances must be taken into account.

In May 2008 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Argentinian cyclist after his A and B samples tested positive for the prohibited substance stanozolol.

The Anti-Doping Commission of the Cycling Union of the Argentine Republic (UCRA) accepted the evidence that the Athlete non intentionally had used contaminated supplements, which didn’t mention on the label that it contained the prohibited substance stanozolol. On 12 August 2008 the UCRA Anti-Doping Commission ruled that the Athlete was not guilty or has been negligent to the reported violation and without disqualification of his results.

Hereafter in October 2008 the UCI appealed the UCRA decision of 12 August 2008 with the Court of Arbitration for Sport (CAS).
Considering the evidence and statements the Panel concludes that the Athlete acted with significant negligence due to the fact that he failed to reseach the label of the supplements before using.

Therefore the Court of Arbitration for Sport decides on 7 April 2009 to impose a 2 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 10 May 2008, including disqualification of his results obtained between 10 May and 23 October 2008.

CAS 2008/A/1500 Denis Roberts v. Fédération Internationale des Luttes Associés (FILA)

• Wrestling
• Doping (amphetamine)
• Validity of a TUE delivered by a national federation
• CAS power of review
• Publication of a provisional suspension
• Apology as a remedy for damages

1. According to the applicable regulation of FILA, an athlete who is not registered on the International Federation’s Registered Testing Pool (RTP) and who is not competing at an international event is not required to possess a Therapeutic Use Exemption (TUE) approved by the International Federation (IF). A TUE granted by the national federation is valid as long as a national event is concerned.

2. Claims for consequential remedies are not in principle excluded in the framework of appeals proceedings. To the extent an appellant challenges a decision rendered by a sports-related body, no limits are per se imposed by the CAS Code to the relief that can be requested by the appellant (see Article R48 of the Code) and granted by the panel. Article R57 of the Code, in fact, meaningfully allows the panel to decide the dispute de novo, directly considering the facts and the law, and does not reduce its powers to the mere setting aside of the challenged decision.

3. Disclosing on its website the provisional suspension of an athlete prior to the determination in a hearing that an antidoping rule violation has occurred, constitutes a breach by the IF of the its antidoping rules and an illegal publication.

4. Under Swiss law, the conditions for the issuance on an IF’s website of an apology as a remedy for damages caused to one’s personality is only allowed for grave and lasting infringements.

Mr. Denis Roberts is an Australian Athlete competing in the 2007 Wrestling Qualification Tournament in Canberra, Australia, in December 2007 where he provided a sample for drug testing.

The Athlete suffered from Attention Deficit Disorder and had a national TUE since April 2007 for the use of dexamphetamine as treatment for his disorder. A TUE application with FILA was denied in April 2007.

Thereupon in January 2008 FILA reported an anti-doping rule violation against the Athlete after his sample tested positive for the prohibited substance amphetamine. After notification FILA ordered a provisional suspension without a hearing and published the details on the FILA website.

ASADA disputed the FILA action and contended to FILA and WADA that the Athlete had a valid national TUE. Further it contended that the Tournament in Canberra was a national level competition and not a competition under FILA Rules.

ASADA argued that imposing a provisional suspension on the Athlete without a hearing was a violation of the Athlete’s rights and a breach of the FILA Rules.

Hereafter in February 2008 the Athlete filed an appeal with the Court of Arbitration for Sport (CAS).

The Panel deems that the publication of the Athlete’s provisional suspension on the FILA website was a breach of the FILA Rules and it rejects the Athlete’s request that FILA be ordered to publish an apology.

Therefore the Court of Arbitration for Sport decides on 19 January 2009:

1.) The requests for relief sought by Mr Denis Roberts are partially granted.

2.) The Panel declares that the publication by the Fédération Internationale des Luttes Associés in its website of Mr Roberts’ provisional suspension breached Article 14.4 of the FILA Anti-Doping Rules.

3.) (…).

4.) All other prayers for relief are dismissed.

CAS 2008/A/1495 Fédération Internationale de Football Association (FIFA) v. Federazione Italiana Giuoco Calcio (FIGC) & Edgar Alfredo Schurtz

• Football
• Doping (furosemide)
• Internally final and binding decision and right to lodge an appeal to the CAS
• Criteria for establishing the lack of “significant fault or negligence”
• Standard of proof for the facts alleged by the athlete
• Relevant and non-relevant circumstances with regard to the degree of the athlete’s fault
• Commencement of the ineligibility period

1. If to all parties no further appeal is possible in the national disciplinary doping proceedings, there is an internally final and binding decision, against which FIFA, according to its regulations, has the right to lodge an appeal to the CAS within 21 day after notification. Where the conditions for appeal to CAS are fulfilled, independently on the applicability of Article R47 of the CAS Code, FIFA’s appeal is admissible and CAS has jurisdiction.

2. Along with the well-established CAS case law and in line with the WADA Code, a player, in order to establish that he bears no significant fault or negligence, must prove a) how the prohibited substance came to be present in his body and b) that his fault or negligence, when viewed in the totality of the circumstances was not significant in relationship to the anti-doping rule violation. In this respect, the burden of proving the above is a very high hurdle for an athlete to overcome. The mitigation of mandatory sanctions is possible only in cases where the circumstances are truly exceptional and not in the vast majority of cases.

3. With regard to the standard of proof required from the indicted player, the player must establish the facts that he alleges to have occurred by a “balance of probability”. According to CAS case-law, the balance of probability standard means that the indicted player bears the burden of persuading the judging body that the occurrence of the circumstances on which he relies is more probable than their non-occurrence or more probable than other possible explanations of the doping offence.

4. Where the player’s departure from the required duty of utmost caution was clearly significant, the player’s behaviour is considered to be significantly negligent even if the player’s explanations of how the prohibited substance came into his body are plausible. A player that uses the same medicine for years without searching for an alternative treatment or asking for a Therapeutic Use Exemption, is considered to knowingly and wilfully accepting the risk that this medicine could be a specified substance that would be present in his body at a doping-test. The circumstances, that the player immediately admitted the anti-doping rule violation, played (the highest level of) non-professional Futsal and was not aware of the need of a Therapeutic Use Exemption, are not relevant as with regard to the degree of his fault.

5. If acknowledged delays in the judging process are not attributable to the player, and the latter timely admitted the anti-doping rule violation, it is fair to make use of the possibility contemplated by the applicable regulations and, thus, to start the period of suspension at an earlier date than the day of notification of the CAS award.

On 14 September 2007 the Italian Football Federation (FICG) Federal Court of Justice Decision decided to impose a 1 year period of ineligibility on the Brazilian Athlete Edgar Alfredo Schurtz after his sample tested positive for the prohibited substance furosemide.

In first instance the Athlete admitted the violation and stated that he had used the medicine Lasix for his condition he suffered for years. The FICG accepted that the conduct of the Athlete was non-siginificant negligent as mitigating circumstances.

Hereafter in February 2008 FIFA appealed the FICG decision of 14 September 2007 with the Court of Arbitration for Sport (CAS).

The CAS Panel finds that the Athlete did not supply any information that might explain why especially this medicine was used and not some other medicine that was not on the Prohibited List. Besides, the Athlete failed to inform the Panel about the nature of “Lasix” or the timing of its ingestion.

Neither did the Athlete provide the Panel with a contemporaneous medical records file substantiating the non sport-related prescription for the Specified Substance. Under these circumstances the Panel concludes that the Player failed to prove that he had no intent to enhance his sport performance or mask the use of a performance-enhancing substance.

Therefore the Court of Arbitration for Sport decides on 30 April 2009:

1.) CAS has jurisdiction to entertain the appeal of the FIFA.

2.) The appeal of FIFA against the decision dated 14 September 2007 of the Corte di Giustizia Federale is upheld.

3.) The decision dated 14 September 2007 of the Corte di Giustizia Federale is set aside.

4.) Mr Edgar Alfredo Schurtz is suspended for a period of two years, to be reduced with the suspension period of one year already served, with the remaining period of one year starting from 26 September 2008.

5.) (…).

6.) (…).

7.) All other prayers for relief are rejected.

CAS 2008/A/1494 Fédération Internationale de Football Association (FIFA) v. Federazione Italiana Giuoco Calcio (FIGC) & Alessio Recchi

• Football
• Doping (benzoylecgonine)
• Internally final and binding decision and right to lodge an appeal with the CAS
• Criteria for establishing lack of “significant fault or negligence”
• Standard of proof for the facts alleged by the player
• Relevant and non-relevant circumstances with regard to the degree of the athlete’s fault
• Prohibited substance and lack of intention to enhance the player’s sports performance
• Commencement of the ineligibility period

1. If to all parties no further appeal is possible in the national disciplinary doping proceedings, there is an internally final and binding decision, against which FIFA, according to its regulations, has the right to lodge an appeal to the CAS within 21 day after notification. Where the conditions for appeal to CAS are fulfilled, independently on the applicability of Article R47 of the CAS Code, FIFA’s appeal is admissible and CAS has jurisdiction.

2. Along with the well-established CAS case law and in line with the WADA Code, a player, in order to establish that he bears no significant fault or negligence, must prove a) how the prohibited substance came to be present in his body and b) that his fault or negligence, when viewed in the totality of the circumstances was not significant in relationship to the anti-doping rule violation. In this respect, the burden of proving the above is a very high hurdle for an athlete to overcome. The mitigation of mandatory sanctions is possible only in cases where the circumstances are truly exceptional and not in the vast majority of cases.

3. With regard to the standard of proof required from the indicted player, the player must establish the facts that he alleges to have occurred by a “balance of probability”. According to CAS case-law, the balance of probability standard means that the indicted player bears the burden of persuading the judging body that the occurrence of the circumstances on which he relies is more probable than their non-occurrence or more probable than other possible explanations of the doping offence.

4. Where the player’s departure from the required duty of utmost caution was clearly significant, the player’s behaviour is considered to be significantly negligent even if the player’s explanations of how the prohibited substance came into his body are plausible. This is the case where the player knew that he had consumed the prohibited substance a few days before the match, but did not tell anyone about it, nor had he seen a doctor for advice, nor did he made a comment on the Doping Control Form. The circumstances, that he admitted the anti-doping rule violation, participated in an anti-doping program and/or played the lowest professional championship of the national football, are not relevant as with regard to the degree of his fault.

5. If the prohibited substance is not listed as a specified substance, it is also irrelevant whether the player had no intention of enhancing his sport performance. Only if the prohibited substance is listed as a “specified substance”, is it relevant to give evidence for the declaration that the specified substance was not intended to enhance sporting performance.

6. If acknowledged delays in the judging process are not attributable to the player, and the latter timely admitted the anti-doping rule violation, it is fair to make use of the possibility contemplated by the applicable regulations and, thus, to start the period of suspension at an earlier date than the day of notification of the CAS award.

On 30 October 2007 the Italian Football Federation (FICG) Federal Court of Justice decided to impose a 1 year period of ineligibility on the Italian Athlete Alessio Recchi after his sample tested positive for the prohibited substance Cocaine.

In first instance the Athlete admitted the violation and the FICG accepted that the conduct of the Athlete was non-siginificant negligent as mitigating circumstances. Hereafter in February 2008 FIFA appealed the FICG decision of 30 October 2007 with the Court of Arbitration for Sport (CAS).

The CAS Panel finds that the Athlete’s degree of ‘fault or negligence’, viewed in the totality of the circumstances in this case, is clearly “significant” in relation to the anti-doping rule violation.

The circumstances, that he admitted the anti-doping rule violation, participated in an anti-doping program and/or played the lowest professional championship of the Italian football, are not relevant as with regard to the degree of his fault.

The Panel concludes that the Athlete did not demonstrate that he bears no significant fault or negligence.
Therefore the Court of Arbitration for Sport decides on 30 April 2009:

1.) CAS has jurisdiction to entertain the appeal of the Fédération FIFA.

2.) The appeal of FIFA against the decision dated 30 October 2007 of the Corte di Giustizia Federale is upheld.

3.) The decision dated 30 October 2007 of the Corte di Giustizia Federale is set aside.

4.) Mr Alessio Recchi is suspended for a period of two years, to be reduced with the suspension period of one year already served, with the remaining period of one year starting from 25 September 2008.

5.) (…).

6.) (…).

7.) All other prayers for relief are rejected.