On 3 Febuary 2014 the Spanish Agency for the Protection of Health in Sport (Agencia Española de Protección de la Salud en el Deporte, AEPSAD) decided to impose a 2 year period of ineligibility on the respondent after his sample tested positive for the prohibited substances terbutaline.
The respondent stated that he used the product Terbasmin as self-medication because of respiratory difficulties, purchased in a pharmacy without prescription.

Hereafter in April 2014 the respondent appealed the AEPSAD decision with the Tribunal Administrativo del Deporte (TAD), the Spanish Disciplinary Committee for Sports.
The respondent filed several arguments in his defence regarding the disproportionality of the imposed sanction; the violations of the rights for defence and against the AEPSAD allegations.

Considering the principle of strict liability the Tribunal concludes that there where no grounds to reduce the imposed sanction; that the respondent failed to apply for a TUE for his medication without a prescription; and that his rights in this case were not violated.
Therefore the Tribunal dismiss the respondent’s appeal and decides on 25 April 2014 to confirm the AEPSAD decision of 3 February 2014.

On 3 Febuary 2014 the Spanish Agency for the Protection of Health in Sport (Agencia Española de Protección de la Salud en el Deporte, AEPSAD) decided to impose a 1 year period of ineligibility on the respondent E16 after her sample tested positive for the prohibited substances chlorothiazide and hydrochlorothiazide without a TUE.

The respondent uses prescribed medication for her chronic illness and was sanctioned without a TUE on 28 November 2011 with a 3 month period of ineligibility.
After she tested positive in june 2012 her case was withdrawn due to a temporary TUE was alreay applied and approved.
The respondent applied for a new TUE on 10 June 2013 when tested out-of-competion on 4 July 2013. The TUE application for the respondent’s was approved for the period 12 July 2013 up to and including 7 June 2017 after she was tested.

Hereafter in March 2014 the respondent appealed the AEPSAD decision with the Tribunal Administrativo del Deporte (TAD), the Spanish Disciplinary Committee for Sports.
The respondent argued that she was without fault or negligence and without intention to enhance sport performance; the sanction was disproportional. With medical reports she showed the necessity to use the prescribed medication for her chronic illness including an approved TUE.

The Tribunal considers the respondent’s arguments and agrees that there was no intention to enhance sport perfomacne and there is an approved TUE with retrospective effect for the use of the prescribed medication as treatment for her illness.
However the Tribunal concludes that the respondent failed to apply for a new TUE in 2012 after her first TUE had expired in June 2012. The respondent can’t claim ignorance and that she was tested out-of-competition. She acted negligently because she waited almost a year until she applied for a new TUE on 10 June 2013. The respondent was tested before and therefore fully aware that the prescribed medication would result in a positive test and the necessity for a TUE.
Therefore the Tribunal dismiss the respondent’s appeal and decides on 8 May 2014 to confirm the AEPSAD decision of 3 February 2014.

On 13 January 2014 the Spanish Agency for the Protection of Health in Sport (Agencia Española de Protección de la Salud en el Deporte, AEPSAD) decided to impose a 2 year period of ineligibility on the respondent after his sample tested positive for the prohibited substance methylhexaneamine (dimethylpentylamine). The Athlete stated that he had used a prepared drink with Hemo Rage from a team member.

Hereafter in February 2014 the respondent appealed the AEPSAD decision with the Tribunal Administrativo del Deporte (TAD), the Spanish Disciplinary Committee for Sports.
The respondent argued that the sanction was disproportional; he acted without fault or negligence; had not intention to enhance his sport performance; and he didn’t know he ingested a prohibited substance.
He stated that he ingested the drink in the morning on Saturday while the competition took place on Sunday after 17:00 hours. Therefore he claimed that 3 hours after ingestion the substance does not enhance sport performance anymore. Also the respondent referred to a similar case with a Portugese duathlete who was sanctioned only for six months.

The Tribunal finds that the respondent had admitted the use of the prohibited substance an acted negligence without ensuring that the drink does not contain a prohibited substance. He also showed insufficient evidence that he acted without intention to enhance sport performance.
Therefore the Tribunal dismiss the respondent’s appeal and decides to confirm the AEPSAD decision of 13 January 2014.

On 19 November 2013 the Spanish Agency for the Protection of Health in Sport (Agencia Española de Protección de la Salud en el Deporte, AEPSAD) decided to impose a 4 year period of ineligibility on the respondent E06 after his A and B samples tested positive for the prohibited substance benzoylecgonine (metabolite of cocaine).

Hereafter in January 2014 the respondent appealed the AEPSAD decision with the Tribunal Administrativo del Deporte (TAD), the Spanish Disciplinary Committee for Sports.
The Tribunal concludes that the respondent’s argument is weak to request for a reduction of the imposed sanction considering the respondent’s doping history and repeated infringements.
Therefore on 12 March 2014 the Tribunal decides to dismiss the respondent’s appeal and confirmes the AEPSAD decision of 19 November 2013.

On 13 January 2014 the Spanish Agency for the Protection of Health in Sport (Agencia Española de Protección de la Salud en el Deporte, AEPSAD) decided to impose a 2 year period of ineligibility and a € 3001,- fine on the respondent E10 after his A and B samples tested positive for the prohibited substance 6-hydroxybromantan (bromantan).

Hereafter in February 2014 the respondent appealed the AEPSAD decision with the Tribunal Administrativo del Deporte (TAD), the Spanish Disciplinary Committee for Sports.
The respondent claimed that the substance 6-hydroxybromantan was not mentioned on the list of the prohibited substances and he disputed the reliability of the laboratory and the test method.

The Tribunal concludes that in the certified and accredited laboratory the metabolite 6-hydroxybromantan was detected in the respondent’s sample consistent with the use of the prohibited substance bromantan.
Therefore on 9 April 2015 the Tribunal decides to dismiss the respondent’s appeal and confirmes the AEPSAD decision of 13 January 2014.

iNADO Update #66 addresses a number of matters of interest to the NADO and RADO community.

- New Members
- 2016 iNADO Workshop
- Lessons Learned from Volkswagen
- Anti-Doping Legislation
- Second Report of the WADA Independent Commission
- New ADKC Resources

CAS 2014/A/3559 Alexandra Georgiana Radu v. Romanian National Anti-Doping Agency (RNADA)

• Aquatics (swimming)
• Doping (dehydrochlormethyltestosterone)
• Admissibility of new documents
• Condition of elimination or reduction of the standard period of ineligibility for a non-specified substance
• Elimination of the standard period of ineligibility under No Fault in case of fulfilment of the athlete’s duty of diligence
• Reduction of the standard period of ineligibility under No Significant Fault or Negligence in case of truly exceptional circumstances
• Commencement of the ineligibility period

1. Based on Article R56 of the Code and in the absence of exceptional circumstances, the documents presented by an athlete after the submission of the appeal brief and of the answer shall be excluded from the proceedings.

2. Where the substance detected in an athlete’s bodily specimen is a non-specified substance, the sole issue to be resolved is whether the athlete committed the offence with “no fault” or with “no significant fault or negligence”. In any event, in order to benefit from the elimination or from a reduction of the period of ineligibility, an athlete must first establish how the prohibited substance entered into his or her body. This information is crucial in order to assess the athlete’s degree of precaution in attempting to prevent the occurrence of an adverse analytical finding.

3. An athlete committed the offence with “no fault” if he/she has established that he/she bears no fault or negligence; i.e. he/she did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he/she had used or been administered the prohibited substance. In this respect, an athlete failed to satisfy his/her duty of diligence if he/she suspected that the pills handed to him/her over a period of about one year by his/her mother who had no medical knowledge might contain prohibited substances but refrained from asking her out of fear of the answer he/she might receive. An athlete also could have either checked the label of the pills containers or entered into contact with a doctor or a professional who could have checked the status of the litigious pills. It is therefore impossible to conclude that the athlete bears “no Fault” and the elimination of the period of ineligibility is precluded.

4. A reduction of the otherwise applicable period of ineligibility can occur only in cases where the circumstances are truly exceptional i.e. when an athlete can show that the degree of fault or negligence in view of all circumstances was such that it was not significant in relation to the doping offence. In this regard, according to CAS jurisprudence, there is no special anti-doping regime for minors especially where no link between the athlete’s age and his/her degree of fault has been demonstrated. It is also irrelevant that an athlete allegedly did not receive any formal drug education from his/her club or federation prior to his/her first in-competition drug test as long as the athlete is found capable of understanding anti-doping requirements. Therefore, by having voluntarily and knowingly ingested pills, despite suspicions of their possibly performance enhancing effects, an athlete acted negligently and cannot establish a truly exceptional circumstance sufficient to reduce his/her negligence or the applicable standard sanction of 2 years.

5. In the context of sport and the administration of sporting justice, the undue length of time of a two-stage process resulting in an athlete’s state of uncertainty as to the outcome of his/her case for over 8 months is excessive. For that reason fairness requires that the standard period of ineligibility of 2 years should start on the date of the sample collection, as authorized by applicable national law.

In June 2013 the National Anti-Doping Agency of Romania (ANAD), has reported an anti-doping rule violation against the minor Athlete after her sample tested positive for the prohibited substance Dehydrochlormethyltestosterone.

The Athlete stated she only used pills for her menstrual pains and supplements provided by her mother. The Athlete’s mother admitted the administration of Turanobol, purchased on the internet. Consequently on 22 July 2013 the Romanian Hearing Commission decided to impose a 2 year period of ineligibility on the Athlete.

Following an appeal with the Appeal Commission of the Romanian National Anti-Doping Agency (decision on 28 October 2013), a retrial for the Hearing Commission (decision on 9 January 2014), an a second appeal with the Appeal Commission (decision on 18 February 2014) the Athlete’s arguments were dismissed and the 2 year period of ineligibility confirmed.

Hereafter in March 2014 the Athlete appealed the decision of the Romanian Appeal Commission with the Court of Arbitration for Sport (CAS).

In her defence the Athlete made the following assertions:

• the sanction is too harsh, given her young age;
• she has never been notified to attend any educational program on anti-doping from ANAD;
• she has never received from the Romanian Swimming Federation nor from her club any specific advice or warning on doping issues;
• she was not followed by any team doctor in spite of her taking part in international competitions; and
• her modest background.

In the present case, it has been established to the satisfaction of the Panel that the Athlete had been administered the prohibited substance by her mother over a period of about one year. The litigious pills had been bought over the Internet on a website, the name of which speaks for itself: “www.steroizi.ro”. It is also now undisputed that the mother had the intention to enhance her daughter’s sporting performance.

The Panel deems that the Athlete failed to satisfy her duty of diligence. The Panel finds it impossible to conclude that she bears “no Fault” and therefore the elimination of the period of ineligibility is precluded.

The Panel finds that the Athlete had acted negligently and her behaviour fell short of the diligent approach to be expected of someone who has the ambition to make a career out of her sport. The Panel concludes that there are no mitigating circumstances justifying the imposition of a lesser sanction.

Therefore the Court of Arbitration for Sport decides on 3 December 2014 that:

1.) The appeal filed by Ms. Alexandra Georgiana Radu against the decision issued on 18 February 2014 by the Appeal Commission beside the National Anti-Doping Agency is partially upheld.

2.) The decision issued on 18 February 2014 by the Appeal Commission beside the National Anti-Doping Agency is amended as follows: Mrs Alexandra Georgiana Radu is found guilty of an anti-doping rule violation and is declared ineligible for a period of two years running from 21 June 2013 (the day of the sample collection).

3.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne by Ms. Alexandra Georgiana Radu.

4.) Each party shall bear its own costs.

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

CAS 2014/A/3688 Maxim Simona Raula v. Romanian National Anti-Doping Agency

CAS 2014/A/3668 Maxim Simona Raula vs ANAD

Related cases:

• ANAD Comisia de Apel 2014_02 Maxim Simona Raula vs ANAD
  June 2, 2014
• ANAD Comisia de Audiere 2013_12 ANAD vs Maxim Simona Raula
  August 28, 2013
  
  

• Athletics (marathon)
• Doping (EPO)
• Burden of proof in connection with an anti-doping rule violation committed by evading sample collection
• Anti-doping rule violation by the presence of EPO in the athlete’s biological sample
• Aggravating circumstances justifying an increase of the standard sanction

1. The national anti-doping authority has the burden of proof to establish that a doping rule violation was committed “to the comfortable satisfaction of the hearing panel”. The national anti-doping authority has met its burden where it has established that an athlete was informed of an upcoming doping control test and intentionally evaded the sample collection with no compelling justification.

2. The Prohibited Substance (EPO) is a stimulating agent included in the WADA 2013 Prohibited List classified under section S2 Peptide Hormones, Growth Factors and Related Substances. The human body cannot excrete EPO naturally, so the only means that EPO can be administered is through an injection into the human body. This is, unless it has been established that the athlete’s sample was somehow spiked with EPO or switched out and replaced with some other athlete’s sample along the way. This also means that neither the conditions during which the sample has been stored including the temperature during transportation and handling of the sample nor any alleged departures from the IST, can cause the Adverse Analytical Finding and therefore could invalidate the result.

3. The evasion of the doping control is an aggravating factor that justifies an increase in sanction, but an additional 2 years (4 years total) is excessive in light of CAS jurisprudence. Nevertheless, the fact to participate in an intentional scheme of doping in a sophisticated manner to improve the athlete’s performance, and while doing so, to intentionally evade detection by failing to attend the doping control should be taken into account to increase the 2 years standard sanction.

In August 2013 the National Anti-Doping Agency of Romania (ANAD) has reported anti-doping rule violations against the Athlete after she evaded sample collection on 31 July 2013. Thereupon her A and B samples - provided on 5 August 2013 -  tested positive for the prohibited substance recombinant human erythropoietin (rhEPO).

• On 28 August 2013 the Romanian Hearing Commission decided to impose a 4 year period of ineligibility on the Athlete.
• On 19 November 2013 the Romanian Appeal Commission upheld the Athlete's appeal.
• On 11 March 2014 the Romanian Hearing Commission confirmed the 4 year period of ineligibility it previously had imposed on the Athlete.
• On 23 April 2014 the Romanian Appeal Commission dismissed the Athlete's second appeal.

Hereafter in July 2014 the Athlete appealed the decision of the Romanian Appeal Commission with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and for a reduced sanction.

The Athlete denied that she had evaded sample collection and explained that she went home to her sick father despite she had been informed of the upcoming doping control at the training camp (and failed to return when requested). Further she alleged that there had been severaral departures of the ISTI and ISL that would invalidate the testing results.

Considering the evidence and statements in this case the Sole Arbitrator concludes that the Athlete intentionally evaded the doping control. He also deems that the presence of a prohibited substance had been established in her samples and accordingly that the she committed a second anti-doping rule violation.

The Sole Arbitrator is not of the view that this is a case where the Athlete should be suspended with the maximum sanction available. Nevertheless, the Sole Arbitrator is comfortably satisfied that the Athlete participated in an intentional scheme of doping in a sophisticated manner to improve her performance, and while doing so, intentionally evaded detection when she failed to attend the doping control.

Therefore the Sole Arbitrator of the Court of Arbitration for Sport decides on 4 June 2015 that:

1.) The appeal filed by the Athlete on 4 July 2014 is partially upheld.

2.) The decision of the Appeal Commission of the Romanian National Anti-Doping Agency is set aside.

3.) Maxim Simona Raula is sanctioned with a period of ineligibility of two (2) years nine (9) months as of 5 August 2013. The period of suspension already served by Maxim Simona Raula shall be credited against the total period of ineligibility.

4.) All competitive results obtained by Maxim Simona Raula, if any, from 5 August 2013 shall be disqualified with all the resulting consequences including forfeiture of any medals, points and prizes.

5.) The costs of the arbitration, to be determined by the CAS Court Office, shall be borne 50% by Maxim Simona Raula and 50% by the Romanian National Anti-Doping Agency.

6.) Each party shall bear their own legal and other costs.

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

In July 2015 the Spanish Agency for the Protection of Health in Sport (Agencia Española de Protección de la Salud en el Deporte, AEPSAD) has reported an anti-doping rule violation against the minor respondent E34 after his sample tested positive for the prohibited substance terbutaline.
The Respondent mentioned the use of the prescribed medication SYMBICORT TURBUHALER 160, on the Doping Control Form without a TUE.
Without significant negligence and intention to enhance AEPSAD decides on 2 November 2015 to impose a warning on the respondent including forfeiture of any medals, points and prizes.

In July 2015 the Spanish Agency for the Protection of Health in Sport (Agencia Española de Protección de la Salud en el Deporte, AEPSAD) has reported an anti-doping rule violation against the respondent E29 after his sample tested positive for the prohibited substance cannabis with a high concentration above the WADA threshold.

After notification the respondent admitted the use of cannabis and hereafter AEPSAD decides on 27 October 2015 to impose a 2 year period of ineligibility on the respondent, starting on the date of the sample collection, i.e. on 21 June 2015.