RECENT CAS DECISIONS OF INTEREST
Since the beginning of 2008 there have been a number of interesting decisions from the Court of Arbitration for Sport on anti-doping matters. Several deal with the weak response of national federations to adverse analytical findings.
WADC 2009 IMPLEMENTATION:
SEVEN “OTHER” RULES NADOS MUST CONSIDER
A number of Articles in the World Anti-Doping Code 2009 (WADC 2009) refer to the possibility, advisability or requirement for other sport rules that would complement WADC 2009 principles and provisions. NADOs should consider how best to address these matters, either in their national anti-doping rules or in other sport rules that apply domestically.
Here is a list of those “other” rules, reasons for them and the relevant WADC 2009 provisions:
WADC 2009 Article 10 – Explanatory Introduction
Article 10 of the World Anti-Doping Code 2009 deals with sanctions for individuals. It addresses a wide range of circumstances. It is the longest and most complex set of provisions to apply in a particular case. According to Article 23.2.2 of the Code, Article 10 must be implemented by Signatories “without substantive change.”
To promote understanding of the factors to be considered in sanctioning individuals, and to assist users applying Article 10, NADOs should consider adding introductory language to their anti-doping rules implementing Article 10 to offer a summary of the main points covered by the detailed provisions. With reference to the sub-article numbers of the Code itself (which would have to be adjusted to reflect the numbering of the NADO’s own rules), here is a possible model:
Related case:
CAS 2015_A_4200 Nikola Radjen vs FINA
June 17, 2016
Facts
The International Swimming Federation (FINA) charged Nikola Radjen, the athlete, for a violation of Anti-Doping Rules. The athlete had two in-competition tests on February 17, 2015 and April 15, 2015. Analysis of the samples showed the presence of metabolites of cocaine. Cocaine is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list.
History
The Chairman of the FINA Doping Panel advised Mr Radjen that both matters would be treated by the FINA Doping Panel in one decision.
The athlete submitted in writing that he had used cocaine out-of-competition in order to deal with personal problems. There was no intention to enhance sport performance.
In this matter, the athlete claims to have used the prohibited substance due to personal problems, there was no intention to enhance sport performance. However the Athlete provided no specific explanation of the manner nor the circumstances in which he took any substance which would yield an adverse analytical finding. Hence, there is no room for a defence based on no fault or negligence, nor no significant fault nor negligence. In addition, the Panel noted that the Athlete spontaneously took steps to render public his anti-doping violation and appears willing to use his misfortune as an educational example for youngsters and other athletes to take lessons from. Undoubtedly, the Athlete's actions after the fact point to a willingness to acknowledge his mistake but he has failed to bring any other anti-doping rule violation to light.
Decision
- The sanction is a 4 (four) year period of ineligibility commencing on May 7, 2015, and ending at the conclusion of May 6, 2019, for his first anti-doping rule violation.
- All results obtained by the athlete on or after February 17, 2015, are disqualified. Any medals, points and prizes achieved during that period shall be forfeited.
- All costs of this case shall be borne by the Water Polo Federation of Serbia.
- Any appeal against this decision may be referred to the Court of Arbitration for Sport (CAS), Lausanne, Switzerland not later than twenty one (21) days after receipt of this judgement.
Doping cases before the CAS / Kutlu Tariman. - Tilburg University and Katholieke Universiteit Leuven, 2012
The Court of Arbitration for Sport (CAS) was founded in 1983 with the idea to create a court that has jurisdiction specifically in sports.1 The CAS first has been an appeal court since 1991, when the FEI in its statutes inserted an arbitration clause allowing its members to appeal against its decisions. The Code of Sports-related Arbitration and Mediation Rules was adopted in 1994. By the end of 2000, around 43 international federations officially recognized the CAS. Doping cases account for a large number of the rulings rendered by the CAS. Through these rulings, the CAS developed some judicial principles such as strict liability, burden and standard of proof and doping sanctions.
The thesis is designed to be a case review. Although all the publicly available doping rulings of the CAS between 1994 and April 2012 is read, critically appraised and referred to during the case review when it is relevant, the thesis will mainly focus on the some of the most debated issues in these rulings, i.e. procedural issues, presumption of guilt, the burden and standard of proof and the sanctions. The cases tried to be listed according to the date of the award and the applicability of the principles after the adoption of the World Anti-Doping Code (WADC).
The CAS developed a very wide body of rulings in the area of doping and these rulings form an integral part of the fight against doping. According to the CAS, fight against doping can only be done within the limits of law. Therefore, it seems like the CAS does not create a practice that has no legal basis. Although there are some general evaluations, the CAS has not controlled the validity of the regulations of federations. In addition, the CAS has been very careful not to create a doping offence through its rulings. The approach shows that the work of the arbitrators is limited to the interpretation of the statutes and regulations in force but not to make law. Furthermore, the rulings evaluated shows that the CAS jurisprudence reflects the changes WADC brought. For instance, the consistent application of a different approach in the athlete’s standard of proof, i.e. balance of probability standard, after the adoption of the WADC is a clear example of this. Additionally, one would not be mistaken if he assumes that the CAS is careful to apply the provisions of the WADC as long as it is possible.
De Nederlandse topsporter en het anti-dopingbeleid 2014-2015 / Erik Duiven en Olivier de Hon. - Capelle aan de IJssel : Dopingautoriteit, 2015
Abstract:
Athletes must comply with the doping regulations adopted by the sports organisations. There is also some resistance among some athletes to the implementation of the anti-doping policy. The Anti-Doping Authority Netherlands (ADAN) periodically surveys Dutch elite athletes to determine their views of this policy.
The goals of this study were:
1. to establish a picture of the efficacy, and the perception, of the current anti-doping policy and procedures within the total field of Dutch elite sports;
2. to evaluate the anti-doping policy of ADAN;
3. to establish concrete recommendations with the aim of making doping detection methods more effective and developing educational resources that will prevent unnecessary pressure on the athletes.
In line with previous years, the ‘elite-status athletes’ were the main target group. These are athletes who have been granted the official elite status by the Netherlands Olympic Committee*Netherlands Sports Confederation (NOC*NSF) and as such they have shown to be able to place in the top-8 in world championships in their respective disciplines, or can be expected to reach this level in the near future.
For the first time, the group surveyed also included elite Track & Field (T&F) athletes, elite cyclists and a group of other elite athletes, all competing at the highest national level in their respective disciplines.
The doping prevalence questions were established using the ‘Randomised Response’ method. This method uses randomisation to produce more honest answers to questions that are socially sensitive. This was the first time this method had been used in a study of doping in elite sports in the Netherlands.
Dutch elite sport is not doping-free. The best available estimate is that 4.2% of elite-status athletes use doping. The estimate of the number of doping users in Dutch elite sports is higher than the estimates from previous studies of Dutch elite athletes. This is most probably due to the use of the ‘Randomised Response’ method.
De Nederlandse topsporter en het anti-dopingbeleid 2014-2015 / Erik Duiven en Olivier de Hon. - Capelle aan de IJssel, 2015
Athletes must comply with the doping regulations adopted by the sports organisations. There is also some resistance among some athletes to the implementation of the anti-doping policy. The Anti-Doping Authority Netherlands (ADAN) periodically surveys Dutch elite athletes to determine their views of this policy.
The goals of this study were:
1. to establish a picture of the efficacy, and the perception, of the current anti-doping policy and procedures within the total field of Dutch elite sports;
2. to evaluate the anti-doping policy of ADAN;
3. to establish concrete recommendations with the aim of making doping detection methods more effective and developing educational resources that will prevent unnecessary pressure on the athletes.
In line with previous years, the ‘elite-status athletes’ were the main target group. These are athletes who have been granted the official elite status by the Netherlands Olympic Committee*Netherlands Sports Confederation (NOC*NSF) and as such they have shown to be able to place in the top-8 in world championships in their respective disciplines, or can be expected to reach this level in the near future.
For the first time, the group surveyed also included elite Track & Field (T&F) athletes, elite cyclists and a group of other elite athletes, all competing at the highest national level in their respective disciplines.
The doping prevalence questions were established using the ‘Randomised Response’ method. This method uses randomisation to produce more honest answers to questions that are socially sensitive. This was the first time this method had been used in a study of doping in elite sports in the Netherlands.
Dutch elite sport is not doping-free. The best available estimate is that 4.2% of elite-status athletes use doping. The estimate of the number of doping users in Dutch elite sports is higher than the estimates from previous studies of Dutch elite athletes. This is most probably due to the use of the ‘Randomised Response’ method.
CAS 2014/A/3866 United States Anti-Doping Agency (USADA) v. Mohamed Trafeh
Related case:
AAA No. 01 14 0000 4694 USADA vs Mohamed Trafeh
December 2, 2014
1. A party appealing a decision before the CAS may request the CAS panel to review only a part of the decision appealed against and not seek a de novo review of the entire appealed decision.
2. Comment to Article 10.9 of the WADA Code expressly states there are only two justifications for starting the period of ineligibility earlier than the start date of the hearing decision: substantial delays in the hearing process or other aspects of doping control not attributable to the athlete. In accordance with CAS jurisprudence, it is appropriate to consider official comments when interpreting the provisions of the WADC and anti-doping rules based on the WADC.
On 2 December 2014 the American Arbitration Association (AAA) decided to impose a 4 year period of ineligibility on the Athlete Mohamed Trafeh for committing multiple anti-doping rule violations:
1.) Purchase of recombinant human erythropoietin (rhEPO);
2.) Possession and transport of rhEPO from Morocco to the United States;
3.) Intentionally providing USADA with false or misleading information regarding his whereabouts in order to avoid having to submit to testing;
4.) Refusal to accept full responsibility for his past doping offense or take redemptive measures to help stem future occurrences of prohibited doping activity in sport, and refusal to participate in these proceedings.
Hereafter in December 2014 USADA appealed the AAA decision with the Court of Arbitration for Sport (CAS) and requested the Panel to start the period of ineligibility on the date of the hearing decision, i.e. on 2 December 2014.
The Sole Arbitrator determines that there is no evidence establishing that the Athlete promptly and unequivocably admitted his anti-doping rule violations after being confronted with evidence of their occurrence by USADA. The Athlete could have raised this issue as well as any other potential defenses by participating and testifying in this proceeding by video or telephone conference, but he choose not to do so.
Nevertheless, even if the Athlete had done so, pursuant to Article 10.9.2 of the WADC (the period of Ineligibility may start as early as the date on which another anti-doping rule violation last occurred), the latest possible start date of his period of ineligibility would be 1 January 2014 based on credible and undisputed evidence he admitted purchasing EPO in January 2014.
Therefore the Court of Arbitration for Sport decides on 13 August 2015 that:
RUSADA Annual statistics and reporting 2010 / Russian Anti-Doping Agency (RUSADA). - Moscow : Российское антидопинговое агентство (РУСАДА), 2011
Contents
1. Introduction. RUSADA Priorities and Goals in 2010 2
2. Report on RUSADA Activities in 2010 3
2.1. Structural and Organizational Transformations 3
2.2 Doping controls 4
2.3 Results Management 5
2.4 Therapeutic Use Exemption Committee (TUEC) 6
2.5 Working out and Implementation of Information and Education Programs 7
2.6 Cooperation with Major Events Organization Committees 12
2.7 Regional Cooperation and Cooperation with Physical Culture and Sports Organizations 13
2.8 International Liaisons 14
2.9 Cooperation with Anti-Doping Norway and WADA as Part of ISO 9001 Certification Program 15
3 RUSADA Priority Activities in 2011 16
Appendixes
1_1 2010 Tests Distribution by Types of Tests 17
1_2 Samples Collected by Types of Tests and Types of Sports 18
1_3 2010 Samples Collected by Sports 19
1_4 Samples Collected in Summer and Winter Olympic Sports 20
1_5 Samples Collected from Athletes with Disabilities 21
1_6 Samples Collected by Age of the Athletes 22
1_7 Samples Distribution by Regions of the Russian Federation 24
1_8 Samples Distribution by Cities of the Russian Federation 26
1_9 Samples Collected in Moscow Region 27
NADA Jahrbuch 2009 / Nationale Anti Doping Agentur Deutschland (NADA). - Aachen : Meyer & Meyer Verlag, 2010. -
ISBN 978-3-89899-620-4
