CAS 2007/A/1426 Giuseppe Gibilisco v. Comitato Olimpico Nazionale Italiano (CONI)

• Athletics (pole vault)
• Doping (attempt to use prohibited substances)
• Anti-doping rule violation resulting in the attempt to use prohibited substances
• Evidence of attempt to use prohibited substances
• CAS scope of review

1. The World Anti-Doping Code
(i) treats as an anti-doping rule violation not only the use of prohibited substances but also a conduct constituting an attempt to use them, and
(ii) includes an autonomous definition of the concept of “Attempt” that shall be applied in the assessment of any conduct eventually leading to such violation. Proof of intent on the athlete’s part is expressly required to establish an attempt to use.

2. The evidence is not of such a level to be considered as showing an attempt to use prohibited substances when it merely shows that the athlete, although aware that a doctor has been involved in doping matters, continues to use the assistance of this medical person and exchanges with him information on doubtful substances as well as on the modalities of the doping controls.

3. Although, pursuant to art. R57 of the CAS Code, a CAS panel has full power to review the facts and the law and to issue a decision de novo, when acting following an appeal against a decision of a federation, association or sports-related body, the power of review of such panel is also determined by the relevant statutory legal basis and, therefore, is limited with regard to the appeal against and the review of the appealed decision, both from an objective and a subjective point of view. Therefore, if a motion was neither object of the proceedings before the previous authorities, nor in any way dealt with in the appealed decision, the panel does not have the power to decide on it and the motion must be rejected.

The Oil for Drugs case is an Italian doping criminal investigation from the Italian Anti-Narcotic Group (NAS) against doctor Carlo Santuccione and a number of accomplices, started in 2003.

Evidence of the criminal investigations showed communications between the athletes and the doctor about providing instructions, advice, dosage plans, methods, supply and administration of the most varied doping substances.

In December 2007 Doctor Santuccione was given a lifetime ban by CONI due to his involvement in the Oil for Drugs case and after having already serving a lengthy ban for a previous doping offense.

In May 2004 NAS made a search in Giuseppe Gibilisco’s domicile and after interrogation the Athlete admitted his contact and involvement with doctor Carlo Santuccione.
In July 2007 the CONI Anti-Doping Prosecution Office (UPA) opened proceedings against the Athlete and on 18 July 2007 the Italian Athletics Federation (FIDAL) decided to impose a 2 year period of ineligibility on the Athlete for the attempted use of prohibited substances.

The Athlete appealed the decision and on 12 September 2007 the FIDAL Appeal Commission decided to set aside this decision and to acquit the Athlete.

Thereupon the UPA-CONI appealed the decision of the FIDAL Appeal Commission with the CONI Giudice di Ultima Instanza in Materia di Doping (the Anti-Doping Supreme Court) and on 26 October 2007 the Court decided to impose a 2 year period of ineligibility on the Athlete.

Hereafter the Athlete appealed the CONI decision of 26 October 2007 with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to be acquitted of the imposed sanction and argued that he had never use or attempted to use prohibited substances under the WADC Rules.

The Panel concludes that, although some of Gibilisco’s conduct raises doubts about the truthfulness of his statements, there are not sufficient elements to determine that Gibilisco attempted to use prohibited substances within the meaning of the WADC. The facts deemed as proven (individually or combined) cannot, in the Panel’s opinion, be considered as conduct constituting a substantial step in a course of conduct planned to culminate in the commission of an anti-doping rule violation.

Therefore on 9 May 2008 the Court of Arbitration for Sport decides:

1.) The decision of the Giudice di Ultima Instanza in Materia di Doping of CONI dated 26 October 2007 imposing a sanction of two years of ineligibility on Giuseppe Gibilisco is set aside.

2.) The further motions of the parties are not accepted and all other prayers for relief are dismissed.

(…).

CAS 2005/A/997 International Skating Union (ISU) v. Anzhelika Kotiuga & Skating Union of Belarus

• Speed skating
• Doping (nandrolone, testosterone, human chorionic gonadotropin)
• Pregnancy as exculpatory circumstance for the finding of exogenous norandrosterone

An alleged early pregnancy cannot explain a level of norandrosterone far higher than the threshold of 2 ng/ml found in an athlete’s samples. Moreover, a pregnant woman has only endogenous values of norandrosterone and not exogenous values.

In March 2005 the International Skating Union (ISU) reported an anti-doping rule violation against the Athlete Anzhelika Kotiuga after her A and B samples tested positive for the prohibited substances Nandrolone, Testosterone and Human Chorionic Gonadotropin (hCG).

In her defence the Athlete denied the use of prohibited substances and blaimed her team doctor Liudmila Lukyanskaya for the violation. Because she had terminated her early pregnancy in February 2005 she alleged that this also could explain the positive test results.

The Council of the Skating Union of Belarus accepted the Athlete’s statement and decided on 18 April 2005 to impose only a warning and a reprimand on the Athlete. It considered the Athlete not guilty for intentionally committing an anti-doping rule violation.

By contrast in May 2005 the Council of the Skating Union of Belarus formally blaimed Ms Liudmila Lukyanskaya and dismissed her from her position as a team doctor of the Skating Union of Belarus. Further the Skating Union of Belarus submitted to the ISU a statement from Ms Liudmila Lukyanskaya accepting full responsibility for unintentionally providing prohibited substances to the Athlete.

Meanwhile the Cologne Laboratory reported to the ISU that the Athlete’s samples showed no indication of a pregnancy; the Norandrosterone in her samples came from an exogenous source; and the Testosterone metabolites can not be explained by the medication she had used.

Consequently on 19 August 2005 the ISU Disciplinary Commission decided to impose a 2 year period of ineglibility on the Athlete. However the ISU Appeals Commission finds on 28 November 2015 that the ISU failed to establish an anti-doping rule violation. As a result the Appeals Commission decided to annul the first instance sanction and to reinstate the Athlete.

Hereafter in December 2015 the ISU appealed the decision of 28 November 2015 with the Court of Arbitration for Sport (CAS). The ISU requested the Panel to set aside the decision of ISU Appeals Commission and to uphold the decision of 19 August 2015 rendeed by the ISU Disciplinary Commission.

The Panel assessed and addressed the following issues:

• Was a prohibited substance present in Ms Anzhelika Kotiuga’s samples?
• If so, was the adverse analytical finding caused by the inconsistencies of the doping test procedure?
• What is the sanction and how should it be calculated?

The Panel determines that the source of Norandrosterone was exogenous. Further the Panel dismissed the Athlete's explanations regarding her pregnancy or her use of medication from her team doctor.

Therefore the Court of Arbitration for Sport decides on 1 February 20016 that:

1.) The appeal filed by the International Skating Union on 15 December 2005 is upheld.

2.) The appealed decision of the ISU Appeals Commission issued on 28 November 2005 is set aside.

3.) Ms Anzhelika Kotiuga is guilty of an Anti-Doping Rule violation committed on 19 February 2005, during the 2005 ISU World Cup Final in speed skating, at Heerenveen, the Netherlands.

4.) Ms Anzhelika Kotiuga’s results obtained during the 2005 ISU World Cup Final in speed skating, at Heerenveen, the Netherlands, i.e. her fourth place in the 1000 meters race, division A, and her first place in the 500 meters race and her medal, her points and prizes are forfeited.

5.) Ms Anzhelika Kotiuga shall be declared ineligible for two years. The period of ineligibility to be imposed upon her shall commence on 19 August 2005 and shall end on 18 August 2007.

6.) (…).

7.) (…).

8.) (…).

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

Avis consultatif TAS 95/144 Comités Olympiques Européens (COE)

Related case:

CAS 1994/128 UCI vs CONI
January 5, 1995

• Anti-Doping Rules
• Competence to regulate doping in multidisciplinary competitions organized by Associations of National Olympic
• Committees

On 5 January 1995, at the request of UCI and CONI (TAS 94/128 UCI-CONI), the Court of Arbitration for Sport (CAS) ruled in an advisory opinion about four questions. In the matter about the authority in international competitions the CAS Panel ruled that the UCI is authorized as International Federation and NOC and any other national sports body are subsidiair.

Because of this remdered opinion TAS 94/128 the Intenational Olympic Committee (IOC) requested in August 1995 the CAS Panel to render an advisory opinion about 2 questions:

1.) Can Associations of National Olympic Committees (NOC) that organize multidisciplinary international competitions, such as the Pan American Games, the Mediterranean Games, the European Youth Olympic Days, in particular, fully implement the IOC Anti-Doping Rules?
2.) Are the NOC Associations authorized in this matter?

On 21 December 1995 CAS Panel rules:

1.) The Anti-Doping Rules applied to multidisciplinary competitions organized by continental or regional NOC Associations fall under the IOC Medical Code as enforcement of Rule 48 of the Olympic Charter.

2.) Without prejudice to the answer to the first question, it seems advisable that NOC Associations organizing multidisciplinary competitions in their constitutive texts should clearly refer to the IOC Medical Code constituent the applicable anti-doping rules.

3.) In multidisciplinary competitions organized by NOC Associations any other anti-doping regulations than the IOC Medical Code can only be applied subsidiair.

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XV Pan American Games, Rio de Janeiro, Brazil, 14-29 July 2007 : Report of the WADA Independent Observer Team / Independent Observer Team. - Montreal : World Anti-Doping Agency (WADA), 2007

2010 Commonwealth Games New Delhi, India 3-14 October 2010 : Report of the WADA Independent Observer Team / Independent Observer Team. - Montreal : World Anti-Doping Agency (WADA), 2010

Independent Observers (IO) Report XVIII Commonwealth Games Melbourne, Australia 15-25 March 2006 / Independent Observer Team. - Montreal : World Anti-Doping Agency (WADA), 2006

World Anti-Doping Agency Independent Observer's XVII Commonwealth Games Manchester, 25th July to 4th August / Independent Observer Team. - Montreal : World Anti-Doping Agency (WADA), 2002

WADA Independent Observer Mission Report 17th Asian Games (Incheon, South Korea) 19 September - 4 October 2014 / Independent Observer Team. - Montreal : World Anti-Doping Agency (WADA), 2014