Avis consultatif TAS 93/109 Fédération Française de Triathlon (FFTri) et International Triathlon Union (ITU)

• Anti-Doping Rules
• Application of the anti-doping rules of an IF by a national federation
• Right of a national federation to adapt the minimum sanction under the IF rules (suspended sanction instead of a firm suspension) provided that such a decision is specifically motivated

On 29 January 1993 and on 19 April 1993 the French Triathlon Federation, Fédération Française de Triathlon (FFTri), decided to impose a 1 year suspended sanction on two athletes for committing an anti-doping rule violation.
The International Triathlon Union (ITU) reproached these sanctions due to under the Rules the FFTri had to impose a 2 year period of ineligibility on the athletes.

After deliberations between the parties this matter was transferred in July 2004 to the Court of Aribitration for Sport (CAS) to render an opinion about two questions:

1.) Does FFTri have the right to opt out of the obligations imposed by its membership in the International Federation by virtue of a ruling by the French Sports Ministery?

2.) Are the provisions of the ITU Rules compatible with the general principles as the autonomy of the judge, the absence of application of fixed sanctions, the proportionality of sanctions according to the facts, in consideration of the athlete's personality and, in any event, with the Anti-Doping Convention of Strasbourg?

The ITU argued that the ITU Anti-Doping Rules are conform the recommendations of the International Olympic Committee and are without provisions to impose a suspended sanction on athletes.
The FFTri argued that the sanctions were imposed according to French law, International law and Human Rights.

The CAS Panel ruled about these two questions on 31 August 1994:

1.) The ITU Anti-Doping Rules don’t prohibit a national triathlon federation in cases with prohibited substances to adapt the minimum sanction available in their Rules and considering the circumstances in each case.
French law doesn’t compel at all a national federation to impose a suspended sanction due to this is an exceptional measure which must be specifically motivated.
A decision from a national federation to impose a suspended sanction in the case of a first violation, in special circumstances and specifically motivated, is not inconsistent with the ITU Anti-Doping Rules.

2.) The ITU Anti-Doping Rules are not incompatible with the general principles of law and in particular are in accordance with the Council of Europe Anti-Doping Convention, signed on 16 November 1989 in Strasbourg.

CAS A3/1999 & CAS A4/1999 Australian Olympic Committee & Australian Handball Federation vs A.

CAS (Oceania registry) A3, A4 / 99; Australian Olympic Committee (AOC) and Australian Handball Federation (AHF)/ A.,

Handball
Doping (salbutamol)
Extenuating circumstances

1. Any form of medication should be first considered and authorised by a medical practitioner who is familiar with the anti-doping regulations of both the AOC and the particular sport. An elite athlete should be aware of possible risks and must normally bear some responsibility for such an enquiry.

2. In the present case, given the age of the athlete, his history of medical need for a medication containing salbutamol, his prior written advice that he was taking this medication to the State Body of the AHF and the fact that responsible officials within the AHF had assisted him with this medication in the past, the athlete has committed a technical breach of the anti-doping policies but bears no moral responsibility for the breaches and that he was not in any way culpably involved in the breaches.

In October 1998 the Australian Athlete tested positive for the prohibited substance salbutamol which he used as prescribed medication Ventolin for his asthma.

The alleged breach of the Australian Handball Federation (AHF) anti-doping policy occurred on the day following the adoption by the AHF of its anti-doping policy. On Sunday 11 October 1998 The Athlete A. was participating in an event in Victoria. Even though it was the day after the AHF had adopted its anti-doping policy and the anti-doping control officer was present, neither the officer nor any other team official told the Athlete A. or any other member of the team or participant that the AHF had adopted an anti-doping policy.

Considering the circumstances the sole arbitrator is satisfied that extenuating circumstances do exist within the meaning of both anti-doping policies and that no sanction should be imposed on the Athlete A. The evidence establish that A. did not know or suspect that the relevant substance was prohibited and had no reasonable grounds to know or suspect that the substance was prohibited.

The Court of Arbitration for Sport decides on 2 August 1999 that:

1.) On 11 October 1998, the Respondent A. committed a breach of the AOC Anti-Doping Policy and the AHF Anti-Doping Policy in that there was present in his body tissues or fluids substances belonging to classes of pharmacological agents which were prohibited, namely the substance Salbutamol which was present as a result of his inhalation of an anti-asthmatic medication Ventolin.
2.) On the balance of probabilities extenuating circumstances do exist and that as a result of those extenuating circumstances there should be no sanction imposed on A.

CAS (Oceania registry) A 2/99 Australian Olympic Committee (AOC) and Amateur Boxing Union of Australia Inc (ABUA) / E.

Boxing
Doping (terbutaline)
Obligation to declare the use of such substance
Good faith of the athlete

1. Terbutaline is a bronchodilator and, according to the IOC list of prohibited substances, is permitted by inhaler only when its use is previously certified in writing by a respiratory or team physician to the relevant medical authority. It is clear that there cannot be more than one relevant medical authority. Further, the athlete must know, or be able readily to ascertain, to whom the giving of such certification will operate so as to take Terbutaline off the prohibited substance list. It cannot be left to the AOC in an action against an athlete and, a fortiori, after the event, to say who it might in its discretion have treated as satisfying the description.

2. If one requires of athletes that they maintain enquiries, it is surely the correlative duty of all those sporting bodies involved in the important fight against drugs in sport to likewise keep up to date and to ensure the steady dissemination to athletes and their coaches - not just of information - but of information which is unambiguously correct. There is a common cause against drugs in sport and actions directed towards that end are necessarily well intentioned. However, little can be achieved in a fog of uncertainty. If sporting bodies do not provide the right information, then it is quite unfair that athletes alone should bear the significant consequences.

In November 1998 the Australian Athlete E. tested positive for the prohibited substance terbutaline which he used as prescribed medication Bricanyl for his asthma.

The Athlete believed that notification on the drug testing form of asthma medication being taken would suffice. This view was consistent with the view of the ABUA communicated in October 1998 to its State Officials. It was not disputed that the Athlete did not know that Terbutaline was a prohibited substance. The sole question for the CAS Panel is whether the Athlete has established, on the balance of probabilities, that not only did he not suspect that it was a prohibited substance, but that he had, as on 1 November 1998, no reasonable grounds to know or suspect that Terbutaline was a prohibited substance.

The Sole Arbitrator finds that the Athlete has established on the balance of probabilities that “extenuating circumstances” as defined exist. In particular the evidence did not establish that, prior to November 1998, Terbutaline was listed as a component of Bricanyl either on the packaging or in an accompanying leaflet.
If sporting bodies do not provide the right information, then it seems to the arbitrator to be quite unfair that Athletes alone should bear the significant consequences.

Therefore the Court of Arbitration for Sport decides on 2 September 1999 that:

1.) A warning is imposed on the Respondent E.
2.) The Award should be made public.

CAS 2001/A/330 R. / Fédération Internationale des Sociétés d’Aviron (FISA)

• Olympic Games
• Doping (nandrolone)
• Validity of a life ban for a first doping offence

1. The life ban sanction imposed was based upon valid provisions of the FISA Rules. Those provisions were well-known and predictable to all rowers, and had provided for the possibility of a life ban for a first doping offence for more than 12 years. In addition, the Appellant (rower) had signed the “rower commitment”, which clearly confirmed that doping violations in the sport of rowing were punishable with a life ban for a first offence. In the circumstances, therefore, the CAS has no hesitation in finding that the sanction contained in FISA’s Rules satisfied what might be called the “predictability test”.

2. Although the CAS undoubtedly has the authority to correct any penalty as it sees fit, it would hesitate for a long time before over-ruling a decision by an International Federation, unless it thought that the Federation’s decision was disproportionate to the offence. While it is clear that many International Federations have decided that a two year suspension is appropriate for a first doping offence, it is equally clear that other International Federations, such as FISA, have chosen to impose higher minimum sanctions as a demonstration of their determination and commitment to the eradication of doping in their sport.

3. As a matter of principle, a life ban can be considered both justifiable and proportionate in doping cases. That is so even if the ban is imposed for a first offence.

R. (The Athlete) is a Latvian Athlete competing in the rowing regatta at the Sydney 2000 Olympic Games.

In September 2000 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance nandrolone.

On 23 September 2000 the IOC decided to disqualify the Athlete and excluded him from the Olympic Games.
On 14 May 2001 the Fédération Internationale des Sociétés d’Aviron (FISA), the World Rowing Executive Committee decided to impose a lifetime period of ineligibility on the Athlete.

Hereafter the Athlete appealed the FISA decision with the Court of Arbitration for Sport (CAS).
The Athlete stated that he was planning to finish his sports career after the Sydney Olympic Games, but that he wanted to support the development of rowing in Latvia. He said that it would be an advantage to those who were organising rowing regattas in Latvia to have him present, and participating in the regatta.

The Panel noticed that the Athlete R. has had a number of opportunities at hearings before the FISA Commission of Enquiry, the FISA Executive Committee and the Panel to adduce evidence to demonstrate his lack of culpability, but has failed to avail himself of any of those opportunities. In particular, he failed to produce any evidence to the Panel which might have persuaded the Panel that the sentence imposed was disproportionate.

The Panel is of the view that the Athlete willingly and foolishly exposed himself to a serious risk by taking such a cocktail of food supplements and other substances as is shown by the evidence that he did take.

Therefore the Court of Arbitration for Sport Panel decides on 23 November 2001 to dismiss the Athlete’s appeal.

Related case:

CAS 2016_A_4803 Ekaterina Gnidenko vs IOC & UCI | Maria Abakumova vs IOC | Tatyana Lebedeva vs IOC & WADA
July 25, 2018

Ms. Ekaterina Gnidenko is a Russian Athlete competing in the Cycling Track Keirin Event and the Track Sprint Event at the London 2012 Olympic Games.

In 2016, the IOC decided to perform further analyses on certain samples collected before and during the 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2012.

In May 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after her 2012 A and B samples (collected in Belarus in July 2012) tested positive for the prohibited substance dehydrochlormthyltestosterone (turinabol). After notification the Athlete filed a statement in her defence and she was heard for the IOC Disciplinary Commission.

The Athlete alleges that she never used intentionally any prohibited substances and/or methods and always strictly followed her doctor’s recommendations. Supported by an expert witness the Athlete disputed the irregulatities with the opening and splitting of her samples and the competence and capability of the laboratory.

The Commission dismissed the arguments of the Athlete and her expert witness and finds that the analytical method and results of the laboratory are valid and concludes that the Athlete has committed an anti-doping violation with the intention to enhance her sport performance.

The Commission notes that the presence of metabolites of this particular substance has been established in a remarkably high number of cases, which resulted from the re-analysis of the samples collected in Beijing 2008 and London 2012. This constitutes an indication that this substance has been in widespread use by athletes.

Therefore the IOC Disciplinary Commission decides on 5 September that the Athlete Ekaterina Gnidenko:

1.) is found to have committed an anti-doping rule violation pursuant to the IOC Anti-Doping Rules applicable to the Games of the XXX Olympiad, London 2012 (presence and/or use, of a Prohibited Substance or its Metabolites or Markers in an athlete’s bodily specimen),
2.) is disqualified from the events in which she participated upon the occasion of the Olympic Games London 2012, namely, the Cycling Track Keirin Event in which she ranked 8th and the Cycling Track Sprint Event in which she ranked 18th, and
3.) has the diploma obtained in the Cycling Track Keirin Event withdrawn and is ordered to return same.
4.) The UCI is requested to modify the results of the above-mentioned events accordingly and to consider any further action within its own competence.
5.) The Russian Olympic Committee shall ensure full implementation of this decision.
6.) The Russian Olympic Committee shall notably secure the return to the IOC, as soon as possible, of the diploma awarded in connection with the Cycling Track Keirin Event to the Athlete.
7.) This decision enters into force immediately.

Mr. Denis Alexeev is a Russian Athlete competing in the 400m Athletics event at the Beijng 2008 Olympic Games.

In 2016, the IOC decided to perform further analyses on certain samples collected during the 2008 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2008.

In May 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after his 2008 A and B samples tested positive for the prohibited substance dehydrochlormthyltestosterone (turinabol). After notification the Athlete filed a statement in his defence and he waived his right to be heard for the IOC Disciplinary Commission.

The Athlete did not accept the test results, denied the intentional use of prohibited substances, and disputed the competence and capability of the laboratory.
The Commission dismissed the arguments of the Athlete and finds that the analytical method and results of the laboratory are valid and concludes that the Athlete has committed an anti-doping violation with the intention to enhance his sport performance.

The Commission notes that the presence of metabolites of this particular substance has been established in a remarkably high number of cases, which resulted from the re-analysis of the samples collected in Beijing 2008 and London 2012. This constitutes an indication that this substance has been in widespread use by athletes.

Therefore the IOC Disciplinary Commission decides on 5 September that the Athlete Denis Alexeev:

1.) is found to have committed an anti-doping rule violation pursuant to the IOC Anti-Doping Rules applicable to the Games of the XXIX Olympiad in Beijing in 2008 (presence and/or use, of a Prohibited Substance or its Metabolites or Markers in an athlete’s bodily specimen),
2.) is disqualified from the events in which he participated upon the occasion of the Olympic Games Beijing 2008, namely, the 400m event in which he ranked 23rd, and the 4x400m event in which the Russian relay team ranked 3rd and was awarded the bronze medal, and
3.) has the bronze medal, the diploma and the medallist pin obtained in the 4x400m event withdrawn and is ordered to return same.
4.) The Russian 4x400m men’s relay team is disqualified from the events in which the Athlete participated upon the occasion of the Olympic Games Beijing 2008, namely the 4x400m event in which the relay team ranked 3rd and was awarded the bronze medal.
5.) The Russian 4x400m men’s relay team has the bronze medals, the diplomas and the medallist pins obtained in the 4x400m event withdrawn and is ordered to return same.
6.) The IAAF is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
7.) The Russian Olympic Committee shall ensure full implementation of this decision.
8.) The Russian Olympic Committee shall notably secure the return to the IOC, as soon as possible, of the bronze medals, the medallist pins and the diplomas awarded in connection with the 4x400m event to the Athlete and the other members of the relay team.
9.) This decision enters into force immediately.

Ms. Inga Abitova is a Russian Athlete competing in the 10,000m Athletics event at the Beijng 2008 Olympic Games.

In 2016, the IOC decided to perform further analyses on certain samples collected during the 2008 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2008.

In May 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after her 2008 A and B samples tested positive for the prohibited substance dehydrochlormthyltestosterone (turinabol). After notification the Athlete filed a statement in her defence and she was heard for the IOC Disciplinary Commission.

The Athlete did not accept the test results and supported by an expert witness she disputed the competence and capability of the laboratory.
The Commission dismissed the arguments of the Athlete and her expert witness and finds that the analytical method and results of the laboratory are valid and concludes that the Athlete has committed an anti-doping violation with the intention to enhance her sport performance.

The Commission notes that the presence of metabolites of this particular substance has been established in a remarkably high number of cases, which resulted from the re-analysis of the samples collected in Beijing 2008 and London 2012. This constitutes an indication that this substance has been in widespread use by athletes.

Therefore the IOC Disciplinary Commission decides on 5 September that the Athlete Inga Abitova:

1.) is found to have committed an anti-doping rule violation pursuant to the IOC Anti-Doping Rules applicable to the Games of the XXIX Olympiad in Beijing in 2008 (presence and/or use, of a Prohibited Substance or its Metabolites or Markers in an athlete’s bodily specimen),
2.) is disqualified from the events in which she participated upon the occasion of the Olympic Games Beijing 2008, namely, the 10,000m Event, and
3.) has the diploma obtained in the 10,000m Event withdrawn and is ordered to return same.
4.) The IAAF is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The Russian Olympic Committee shall ensure full implementation of this decision.
6.) The Russian Olympic Committee shall notably secure the return to the IOC, as soon as possible, of the diploma awarded in connection with the 10,000m Event to the Athlete.
7.) This decision enters into force immediately.

Related case:

CAS 2016_A_4803 Ekaterina Gnidenko vs IOC & UCI | Maria Abakumova vs IOC | Tatyana Lebedeva vs IOC & WADA
July 25, 2018

Ms. Maria Abakumova is a Russian Athlete competing in the javelin throw event at the Beijng 2008 Olympic Games.

In 2016, the IOC decided to perform further analyses on certain samples collected during the 2008 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2008.

In May 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after her 2008 A and B samples tested positive for the prohibited substance dehydrochlormthyltestosterone (turinabol).
After notification the Athlete filed a statement in her defence and she was heard for the IOC Disciplinary Commission.

The Athlete alleges that she never used intentionally any prohibited substances and/or methods and always strictly followed her doctor’s recommendations. The Athlete stated that she had taken proteins, fat regulators and multi-vitamins, with the permission of her doctor and after consultation with a specialist. She stated that these products were produced in the USA and were provided to her by Dr Rodchenkov, who had been head of the Moscow anti-doping laboratory at that time and in whom she had placed her full trust. She had also been given some other vitamins, produced in Russia, but these had been tested and registered to the best of her knowledge.
In addition supported by an expert witness the Athlete disputed the irregulatities with the opening and splitting of her samples and the competence and capability of the laboratory.

The Commission dismissed the arguments of the Athlete and her expert witness and finds that the analytical method and results are valid and beyond question and concludes that the Athlete has committed an anti-doping violation with the intention to enhance her sport performance.

The Commission notes that the presence of metabolites of this particular substance has been established in a remarkably high number of cases, which resulted from the re-analysis of the samples collected in Beijing 2008 and London 2012. This constitutes an indication that this substance has been in widespread use by athletes.

Therefore the IOC Disciplinary Commission decides on 5 September that the Athlete Maria Abakumova:

1.) is found to have committed an anti-doping rule violation pursuant to the IOC Anti- Doping Rules applicable to the Games of the XXIX Olympiad in Beijing in 2008 (presence and/or use, of a Prohibited Substance or its Metabolites or Markers in an athlete’s bodily specimen),
2.) is disqualified from the events in which she participated upon the occasion of the Olympic Games Beijing 2008, namely, the javelin throw event in which she ranked 2nd and was awarded the silver medal, and
3.) has the silver medal, the diploma and the medallist pin obtained in the javelin throw event withdrawn and is ordered to return same.
4.) The IAAF is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The Russian Olympic Committee shall ensure full implementation of this decision.
6.) The Russian Olympic Committee shall notably secure the return to the IOC, as soon as possible, of the silver medal, the diploma and the medallist pin awarded in connection with the javelin throw event to the Athlete.
7.) This decision enters into force immediately.

In May 2016 the National Anti-Doping Organisation Flanders (NADO Flanders) has reported an anti-doping rule violation against the Athlete for his refusal and failure to submit to sample collection.

The Person was selected at a carracing competition in Flanders, Belgium, to provide a sample for drug testing. Because the Athlete could not produce enough for a sample he was ordered to return later but hereafter he failed to return to the Doping Control Station.

After notification a provisional suspension was ordered. The Person failed to attend the hearing of the Flemish Disciplinary Commission, nor did he file a statement in his defence.
Without the Person’s response the Flemish Disciplinary Commission decides on 6 September 2016 to impose a € 2000,- fine and a 4 year period of ineligibility on the Person starting on the date of the notification.

Social psychology of doping in sport : a mixed-studies narrative synthesis / Susan Backhouse, Lisa Whitaker, Laurie Patterson, Kelsey Erickson, Jim McKenna. – Institute for Sport, Physical Activity & Leisure (ISPAL); Leeds Beckett University. – Leeds : ISPAL, 2016

• Review prepared for the World Anti-Doping Agency (WADA)
• WADA review of literature
• Publication date in the review: October 2015.

Commissioned by the WADA, the review aims to build on the findings of our previous review by summarising the current evidence.

The review focuses on:

(i) psychosocial correlates and predictors of doping in sport,
(ii) knowledge, attitudes, beliefs and behaviours towards (anti-) doping,
(iii) efficacy and effectiveness of anti-doping education programmes, and
(iv) doping specific models and theories. The new mixedstudies
synthesis provides researchers, policymakers and practitioners with a comprehensive summary of current progress in the field.

Contents:

• Executive Summary
• Introduction
• Athlete Support Personnel
• Adolescent Athletes
• Competitive Athletes
• Elite Athletes
• Gym users
• General Public
• Intervention Studies
• Theoretical Perspectives on Doping Behaviours
• The Wider Science of Behaviour Change
• Synthesis and Future Focus
• References
• Appendix: Search Strategy