Status of Russia Testing / WADA Executive Committee and Foundation Board. - World Anti-Doping Agency (WADA), 2016

English version

Related case:

Spanish Criminal Court 52_2012 RFEC, WADA, UCI & CONI vs Eufemiano Claudio Fuentes Rodríguez, José Ignacio Labarta Barrera, Manuel Saiz Balbás, Yolanda Fuentes Rodríguez & Vicente Belda Vicedo
April 29, 2013

Audiencia Provincial de Madrid Sentencian Nº 302/2016
Sección Primera
Magistrados:
- Alejandro Benito López
- Manuel Chacón Alonso
- Elena Perales Guilló

Procedimiento abreviado nº 52/2012
Juzgado de lo Penal nº 21 de Madrid
Rollo de Sala nº 319/2013

En Madrid, a diez de junio de dos mil dieciséis.

Vistos en segunda instancia los recursos de apelación contra la sentencia de 29 de abril de 2013 del Juzgado de lo Penal nº 21 de Madrid en el procedimiento abreviado nº 52/2012, seguido contra:
- don Eufemiano Claudio Fuentes Rodríguez,
- don José Ignacio Labarta Barrera,
- don Manuel Saiz Balbás,
- doña Yolanda Fuentes Rodríguez y
- don Vicente Belda Vicedo.

In the doping case Operacion Puerto the Guardia Civil arrested on 22 May 2016 the Spanish sports doctor Eufemiano Fuentes together with four other accomplices. In Fuentes' clinic, home and office in Madrid, 186 blood bags were found belonging to professional athletes and marked with coded names, besides EPO, steroids, and growth hormone.

In January 2013 the Operacion Puerto trial was conducted against Fuentes and accomplices under Spanish criminal law covering the illicit administration of medication, and not under the anti-doping legislation that exists in Spain today but did not exist back in 2006. On the 29 April 2013 Fuentes was found guilty and given a 1 year suspended prison sentence.

In the Puerto trial (case 52/2012) the Spanish judge also ruled on a request from RFEC, WADA, UCI and CONI to hand over blood bags to the Spanish anti-doping agency. However the judge ordered on 29 April 2013 to destroy the blood bags, but the anti-doping agency appealed this decision.
Hereafter additional appeals where filed by the RFEC, WADA, UCI and CONI, as well as by the prosecution against sentence 52/2012 of 29 April 2013.

On 10 June 2016 the Audiencia Provincial de Madrid ruled that 211 blood bags collected during the Operación Puerto doping investigation should be hand over to anti-doping authorities in Italy, as well as the UCI and the World Anti-Doping Agency.

The Spanish Court also absolved of guilt dr. Fuentes, who in 2013 was found by the Spanish court to have doped cyclists and handed a suspended jail sentence, with the new sentence his actions did not constitute a crime under Spanish law.

In April 2013, Spanish judge Santamaria found that Fuentes' use of blood-doping methods was illegal, although she decided that Spanish privacy laws prohibited the passing on of evidence to the World Anti-Doping Agency (WADA), International Cycling Union (UCI) or Spanish Anti-Doping Agency (AEA) for further investigation or identification of individuals.

The Spanish judge Alejandro Maria Benito of the Audiencia Provincial de Madrid reversed on 10 June 2016 both decisions, and decided that evidence collected during a police investigation that dates back to 2006, and currently stored in Barcelona, can be investigated at again.

Related case:

Spanish District Court 302_2016 WADA, UCI, CONI & RFEC vs Eufemiano Claudio Fuentes Rodríguez, José Ignacio Labarta Barrera, Manuel Saiz Balbás, Yolanda Fuentes Rodríguez & Vicente Belda Vicedo
June 10, 2016

Órgano: Juzgado de lo Penal
Sede: Madrid
Sección: 21
Nº de Recurso: 52/2012
Nº de Resolución: 144/2013
Procedimiento: PENAL - PROCEDIMIENTO ABREVIADO/SUMARIO
Ponente: JULIA PATRICIA SANTAMARIA MATESANZ
Tipo de Resolución: Sentencia

In the Operación Puerto doping case the Guardia Civil arrested on 22 May 2016 the Spanish sports doctor Eufemiano Fuentes together with other accomplices. In Fuentes' clinic and offices in Madrid, 186 blood bags were found belonging to professional athletes and marked with coded names, besides EPO, steroids, and growth hormone.
The scandal that grew from the arrests implicated well-known road racing cyclists Fuentes continually denied having performed illegal operations. He said that he did not work exclusively with cyclists but had other athletes as clients such as footballers and tennis players.

In January 2013 the Operacion Puerto trial was conducted against Fuentes and other accomplices under Spanish criminal law covering the illicit administration of medication, and not under the anti-doping legislation that exists in Spain today but did not exist back in 2006.
On the 29 April 2013 Fuentes was found guilty and given a 1-year suspended prison sentence.

In the Puerto trial the Spanish judge also ruled on a request from RFEC, WADA, UCI and CONI to hand over blood bags to the Spanish anti-doping agency. However the judge ordered on 29 April 2013 to destroy the blood bags, but the anti-doping agency appealed this decision.
Hereafter additional appeals where filed by the RFEC, WADA, UCI and CONI), as well as by the prosecution.

The Whereabouts in the fight against doping. What about the whereabouts : necessary evil or disproportional violation of the rights of elite athletes / Jens Raes. – Ghent : Ghent University, 2012. – (Masters dissertation Ghent University)

De whereabouts in de strijd tegen doping. What about the whereabouts : noodzakelijk kwaad of disproportionele inbreuk op de rechten van de elitesporter / Jens Raes. - Gent : Univeriteit Gent, 2012. - (Masterproef opleiding Master in de rechten, Universiteit Gent, Faculteit Rechtsgeleerdheid, academiejaar 2011-2012)

Inhoud:

Hoofdstuk 1: Inleiding
Hoofdstuk 2: Juridische grondslag
2.1 Internationale context
2.2 Nationale context
Hoofdstuk 3: What about the Whereabouts
3.1 Definities
3.2 De whereabouts vanuit praktisch oogpunt
Hoofdstuk 4: Case-studies
4.1 Wickmayer-Malisse
4.2 Sporta
4.3 Buitenlandse Cases
Hoofdstuk 5: De whereabouts en het recht op privacy
5.1 Verenigbaarheid van de whereabouts met artikel 8 EVRM
5.2 Visie privacycommissie
Hoofdstuk 6: De whereabouts en het sportrecht binnen de EU
6.1 Historische achtergrond
6.2 Meca-Medina en Majcen
6.3 Guillermo Cañas
6.4 Meca-Medina en Cañas openen perspectieven in de strijd tegen de whereabouts
6.5 Richtlijn betreffende een aantal aspecten van de organisatie van de arbeidstijd
Hoofdstuk 7: Algemene conclusie en alternatieven
7.1 Schending van de rechtszekerheid omwille van de procedure
7.2 Schending legaliteitsbeginsel en proportionaliteitsbeginsel
7.3 Alternatieven
7.4 Slotwoord
Bibliografie

High on sport : the ethically unjustified inclusion of cannabis on the anti-doping list / Michael Riemersma. – Utrecht : Universiteit Utrecht, 2011-06-17. – Master thesis MA Applied ethics, Universiteit Utrecht. – (Supervisors: Jan Vorstenbosch, Olivier de Hon)

Content:

0. Summary
1. Introduction
1.1 About WADA and the Code
1.2 Cannabis on the anti-doping list
1.3 Definition of sport
2. Is cannabis performance enhancing?
3. The health-argument: a Millian approach
3.1 Cannabis and health
3.2 Cannabis and the harm-principle
3.3 A drug race: harm to the health of competitors
3.4 Cannabis and reckless behavior
3.5 Safety responsibilities of sport organisations
4. Cannabis and the spirit of sport
4.1 WADA‟s definition
4.2 Alternative definition
4.3 Excellence in performance
4.4 Ethics, fair play and honesty
4.5 Athletes as role models
5. Privacy
5.1 A right to privacy
5.2 WADA and privacy
5.3 Cannabis and privacy
6. Doping hunt and resource allocation
6.1 Resources allocation: a moral issue
6.2 Mill‟s Utilitarianism
6.3 The right to health, fairness and equality in sport
6.4 Anti-doping costs
7. Conclusion
References

CAS 2015/A/4063 World Anti-Doping Agency (WADA) v. Czech Anti-Doping Committee (CADC) & Remigius Machura Jr.

Athletics (shot-put); American Football
Doping (human growth hormone – somatotrophin)
Notion of appealable decision
Conditions to be fulfilled by a retired athlete subject to a period of ineligibility when returning to competition
Lis pendens
Intent in cases of refusal to submit to doping control
Sanction in case of a second anti-doping violation

1. In principle, for a communication to be a decision, this communication must contain a ruling, whereby the body issuing the decision intends to affect the legal situation of the addressee of the decision or other parties. The form of the communication has no relevance to determine whether there exists a decision or not. A letter by which an anti-doping organisation intends to affect the legal situation of an athlete by informing him that a previous letter by which the athlete was informed that he was being charged with an anti-doping violation was withdrawn and explains that the reason for withdrawal is that the test should not have taken place is to be qualified as a decision.

2. An athlete who retires from sport while subject to a period of ineligibility shall not resume competing in international events or national events until he has given prior written notice to his/her national anti-doping authority and to his/her International Federation of his/her intent to resume competing and has made him/herself available for testing for that notice period. The athlete therefore remains subjected to the out-of-competition testing authority of the national anti-doping authority throughout the whole notice period.

3. The principle of lis pendens has been defined as a situation in which parallel proceedings, involving the same parties and the same cause of action, are continuing in two different states at the same time. The principle of lis pendens is however not applicable in a matter where, although the parties are the same, the cause of action of the two proceedings clearly differ from each other.

4. A refusal to submit to sample collection is presumed to have been committed intentionally and the burden of proving that the violation was not committed intentionally lies with the athlete. A refusal to submit to sample collection cannot be considered to have happened unintentionally when, after a first notification of the obligation to comply with out-of-competition control by the DCO in front of his house, the athlete returns into his/her house and fails to respond to repeated active attempts by the DCO to re-establish the contact.

5. In case of a second anti-doping rule violation, the period of ineligibility shall be the greater of a) six months, b) one-half of the period of ineligibility imposed for the first anti-doping rule violation without taking into account any reduction under Article 10.6, or c) two times the period of ineligibility otherwise applicable to the second anti-doping rule violation treated as if it were a first violation, without taking into account any reduction under Article 10.6. In case the period of ineligibility to be imposed is in principle four years, the greater of the abovementioned options is two times the period of ineligibility otherwise applicable, i.e. an eight year period of ineligibility.

On 18 February 2015 the Czech Anti-Doping Committee (ADV ČR), decided to allow the Athlete Remigius Machura to return to competitive activity without restriction as from 1 March 2015.

Previously the Athlete was involved in anti-doping proceedings:
- In 2010 the Athlete tested positive for the use of human growth hormone (somatotrophin) and a 2 year period of ineligibility was imposed on 23 September 2010, starting from 12 August 2010 until August 2012.
- In February 2011 the Athlete terminated his competitive sports activity and returned to his competitive sports activity in April 2013.

Because the Athlete failed to notify his return to competition het failed to subject himself for the requisitie period of time prior to such return. The Athlete was fined and he was banned from participating in the Czech league of American Football for the remainder of 2013.

- The ADV ČR appealed this decision and on 21 November 2013 the Arbitration Board of the Czech Olympic Committee decided that the Athlete must subject himself to af further 545 days of out-of-competition testing before returning to competition.
- On 5 February 2015 the ADV ČR informed the Athlete that he was included in the National Registered Testing Pool.
- On 11 February 2015 the Athlete refused to submit to doping control at his house.
- On 18 February the ADV ČR ruled that because of a breach of intern procedural rules the out-of-competition test on 11 February 2011 at the Athlete’s house should not take place.

In May 2015 WADA appealed the ADV ČR decision with the Court of Arbitration for Sport (CAS). WADA requested the CAS Sole Arbitrator to set aside the ADV ČR decision of 18 February 2015 and to impose a 8 year period of ineligibility on the Athlete. WADA argued that the Athlete was subject to out-of-competition testing and intentionally had evaded and refused to submit to sample collection.

Considering the evidence the Sole Arbitrator concludes that:
1.) The ADV ČR had out-of-competition testing authority over the Athlete on 11 February 2015.
2.) The ADV ČR was in no way prevented from continuing the prosecution of the Athlete in respect of the alleged refusal or failure to submit to sample collection and should have continued the prosecution.
3.) The Athlete committed an anti-doping rule violation by refusing to submit to sample collection.
4.) An eight year period of ineligibility is to be imposed on the Athlete, commencing upon the issuance of the present arbitral award.

Therefore the Court of Arbitration for Sport decides on 5 November 2015 that:

1.) The appeal filed on 11 May 2015 by the World Anti-Doping Agency against the Decision issued on 18 February 2015 by the Director of the Czech Anti-Doping Committee is upheld.
2.) The Decision issued on 18 February 2015 by the Director of the Czech Anti-Doping Committee is set aside.
3.) The Athlete Mr Remigius Machura is sanctioned with an 8 year period of ineligibility starting from the date of notification of the present award.
4.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne in their entirety by the Czech Anti-Doping Committee (ADV ČR).
5.) The ADV ČR shall bear its own costs and is ordered to pay to the World Anti-Doping Agency the amount of CHF 2,500 (two thousand five hundred Swiss Francs) as a contribution towards the legal fees and other expenses incurred in connection with these arbitration proceedings.
6.) Mr Remigius Machura shall bear his own costs.
7.) All other prayers or requests for relief are dismissed.

CAS 2015/A/4163 Niksa Dobud v. Fédération Internationale de Natation (FINA)

Related case:

FINA 2015 FINA vs Niksa Dobud
July 15, 2015

• Aquatics (water polo)
• Doping (evading sample collection)
• Standard of proof
• Motives to evade a test
• Possibility of reducing the applicable sanction

1. The standard of proof is that of comfortable satisfaction. Comfortable satisfaction is less than beyond reasonable doubt and more than on a balance of probabilities. The less probable the matter sought to be proved to that standard, the more cogent must be the evidence to prove it.

2. The regulations governing test evasion do not require the governing body to establish why an athlete may have evaded a test; only that he had in fact done so.

3. There is no applicable provision of the World Anti-Doping Code as embodied in the FINA regulations for reducing a penalty for evasion of doping controls; a CAS panel is bound by to apply the code requirements if it finds that the standards for the violation have been met.

On 15 July 2015 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Athlete Niksa Dobud after his failure to submit to a doping test.

Hereafter in August 2015 the Athlete appealed the FINA decision of 15 July 2015 with the Court of Arbitration for Sport (CAS).

The Athlete asserted that this was a simple case of mistaken identity. The man who came to the door was not him, but his wife’s brother. The Athlete argued that the DCO and his assistant DCO had only previously tested him on a single occasion many months before and then in the company of other members of the team. The DCO had not been properly equipped with material to assist in the identification.

FINA asserts that the DCO, an experienced professional, and his assistant DCO correctly identified the man who came to the door as the Athlete. They saw him twice, not once as the Athlete alleges and had indeed tested him previously. His wife’s brother looked nothing like the Athlete or indeed like an athlete.

The CAS Panel notes that the key issue in this appeal is: Was the male person the DCO and his assistant DCO saw on the morning of 21 March 2015 in the Athlete’s flat at the address indicated in the Athlete's whereabouts, the Athlete (the DCO's version) or the brother of his wife (the Athlete's version)?
If it was the Athlete, then it follows from what transpired thereafter that he evaded a test. If it was his wife’s brother then - at the highest - the Athlete missed a test.

Considering the evidence in this case the Panel is constrained to prefer to accept the evidence of the DCO and his assistant DCO about evasion of doping controls. The Panel is bound by the provisions of the World Anti-Doping Code as embodied in the FINA regulations and there is no applicable provision for reducing a penalty for evasion of doping controls; the Panel is bound by to apply the code requirements if it finds that the standards for the violation have been met.

Therefore the Court of Arbitration for Sport decides on 15 January 2016 that:

1.) The appeal filed by Mr Niksa Dobud against the decision rendered by the FINA Doping Panel on 15 July 2015 is dismissed.

2.) The decision rendered by the FINA Doping Panel on 15 July 2015 is confirmed.

3.) The present arbitration procedure shall be free, except for the CAS Court Office fee of CHF 1,000 (one thousand Swiss francs), which has already been paid by Mr Niksa Dobud and is retained by the CAS.

4.) Each party shall bear his/its own costs incurred m connection with the present proceedings.

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

2016/A/4371 Robert Lea v. United States Anti-Doping Agency (USADA)

Related case:
AAA No. 01 15 0005 6647 USADA vs Robert Lea
January 5, 2016

On 5 January 2016 the American Arbitration Association (AAA) Commercial Arbitration Tribunal decided to impose a 16 month period of ineligibility on the Athlete Robert Lea after his sample tested positive for the prohibited substance noroxycodone (metabolite of oxycodone).

Hereafter in February 2016 the Athlete appealed the AAA decision of 5 January 2016 with the Court of Arbitration for Sport (CAS).
The Athlete requested for a reduced sanction and argued that USADA / AAA failed in rendering its decision: to follow the applicable WADA rules and regulations; to make proper assumptions; to assess the filed evidence; to impose a sanction that was consistent with recent sanctions.
The Athlete admitted that he had used prescribed Percocet for his athletic injuries and without intention to enhance his performance. He stated that the medication was used out of competition more than 12 hours before the next competition.

The CAS Panel determines that the totality of circumstances regarding the Athlete's positive in-competition test for a "low" amount of metabolites of oxycodone in an in-competition drug test is an "exceptional case" in which the "subjective elements are so significant that they move [him] not only to the extremity of a particular category, but also into a different category altogether."
While recognizing that Appellant is an experienced cyclist (10 years as professional) with a history of receiving and having access to extensive drug education who did not disclose his usage of Percocet the evening of 7 August 2015 in his 8 August 2015 USADA Doping Control Form, the Panel concludes that application of the subjective mitigating factors justify moving him into the "light degree of fault" category.

Therefore the Court of Arbitration for Sport rules that:
1.) The appeal filed on 29 December 2015 by Mr Robert Lea against the 15 December 2015 Award rendered by the American Arbitration Association/North American Court of Arbitration for Sport Panel is partially upheld.
2.) The period of ineligibility imposed on Mr Robert Lea by the 15 December 2015 Award rendered by the American Arbitration Association/North American Court of Arbitration for Sport Panel is reduced to six (6) months, commencing from 10 September 2015 (the date he accepted his provisional suspension).
3.) Except as aforesaid, the 15 December 2015 Award rendered by the American Arbitration
Association/North American Court of Arbitration for Sport Panel in this matter remains in full force and effect.
4.) The costs of the arbitration, to be determined and notified to the parties by the CAS Court Office, shall be borne by the parties in equal shares.
5.) Each party shall bear his/its own costs, including attorney's fees, incurred in connection with the present proceedings.
6.) All other motions, requests, or prayers for relief are dismissed.

Related case:
CAS 2016/A/4643 Maria Sharapova vs ITF
September 30, 2016

In March 2016 the International Tennis Federation (ITF) has reported an anti-doping rule violation against the Athlete Maria Sharapova after her samples, provided on 26 January and 2 February 2016 tested positive for the prohibited substance Meldronate (Meldonium). This substance is added on the WADA Prohibited List from 1 January 2016.
After notification the Athlete gave a prompt admission for the use of the substance, filed a statement with medical evidence in her defence and was heard for the ITF Independent Tribunal.

The Athlete stated she used the substance as medication since 2006 prescribed by Dr. Anatoly Skalny as treatment for her cold-related and inflammatory diseases. She admited that she does bear some fault because she did not know that the substance was prohibited since 1 january 2016. The use of the Mildronate was not known to any of the Athlete’s team members, the Athlete did not consult the WTA wallet card with prohibited substances and failed to mention the Meldronate on any Doping Control Form between 2014 en 2016.

The Tribunal concludes that the violation of the anti-doping rules was not intentional as the Athlete did not appreciate that Mildronate contained a substance prohibited from 1 January 2016. However she does bear sole responsibility for the violation, and very significant fault, in failing to take any steps to check whether the continued use of this medicine was permissible. If she had not concealed her use of Mildronate from the anti-doping authorities, members of her own support team and the doctors whom she consulted, but had sought advice, then the violation would have been avoided. She is the sole author of her own misfortune.

Therefore the Tribunal decides on 6 June 2016 to impose a 2 year period of ineliglibility on the Athlete Maria Sharapova starting on the date of the sample collection, i.e. on 26 January 2016.

Statement of the Court of Arbitration for Sport (CAS) on the decision made by the German Federal Tribunal (Bundesgerichtshof) in the case between Claudia Pechstein and the International Skating Union (ISU)