TAS 2013/A/3316 World Anti-Doping Agency (WADA) v. Chimdesteren Bataa & International Powerlifting Federation (IPF)

CAS 2013/A/3316 WADA vs Chimdesteren Bataa & IPF

On 29 July 2013 the Doping Hearing Panel of the International Powerlifting Federation (IPF DHP) decided to impose a 2 month period of ineligibility on the Athlete after he tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine) related to his use of the supplement Jack 3d while he was unaware that it contained a prohibited supplement.

Hereafter in September 2013 the World Anti-Doping Agency (WADA) appealed the IPF Decision with the Court of Arbitration for Sport. WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

The Panel concludes that the Athlete had committed an anti-doping rule violation and that it is undisputed that the supplement Jack 3d was the source of the prohibited substance.

Following assessment of the evidence and case law the Panel deems that there are no grounds that the Athlete had acted intentionally. In view his conduct the Panel finds that he acted with some degree of negligence regarding the supplement in question.

Therefore the Court of Arbitration for Sport (CAS) decides on 13 May 2014 to set aside the Appealed Decision of 29 July 2013 and to impose a 15 month period of ineligibility on the Athlete.d.

Ms Olga Beresnyeva is an Ukrainian Athlete competing in the Women's 10 km open water marathon event at London 2012 Olympic Games.

In 2015, the IOC decided to perform further analyses on certain samples collected during the 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2012.

In April 2015 the IOC reported an anti-doping rule violation against the Athlete after her sample tested positive for the prohibited substance recombinant human erythropoietin (rhEPO).

After notification the Athlete admitted the violation, she submitted a statement in her defence and she waived her right to be heard. She stated that she had purchased the substance on the internet and used in the end of 2011 because of her decreasing sport results.

The Disciplinary Commission unanimously conclude that the Athlete has committed an anti-doping rule violation and notes that the Athlete has cooperated with the investigation and has answered to the written questions of the Disciplinary Commission in a diligent manner.

Therefore the IOC Disciplinary Commission decides on 9 June 2015 that the Athlete, Ms. Olga Beresnyeva,

1.) is disqualified from the Women’s 10 km open water marathon event of the Games of the XXX Olympiad in London in 2012, where she placed 7th;
2.) is excluded from the Games of the XXX Olympiad in London in 2012;
3.) shall have her diploma in the above event withdrawn.
4.) The Fédération Internationale de Natation (FINA) is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The National Olympic Committee of Ukraine shall ensure full implementation of this decision.
6.) This decision shall enter into force immediately.

Facts
The Royal Netherlands Power Sport and Fitness Federation (Koninklijke Nederlandse Krachtsport en Fitnessfederatie, KNKF) had reported an anti doping rule violation against the athlete. During an in-competition test samples were taken for doping test purposes. The analysis of the A sample showed the presence of norandrosterone. Norandrosterone is a metabolite of nandrolone which is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list of 2010. It is regarded as a non-specified substance.

History
The athlete was never before sanctioned for a doping violation, there are no aggravating circumstances. There was no response to letters from the disciplinary committee for that reason the case was handled in writing.

Decision
- The sanction is a period of ineligibility of two years.
- The athlete shall bear the costs for the disciplinary committee.

Facts
On 30th August 2014, Mr. Lee Chong Wei, was selected for doping control testing at the BWF World Championships in Copenhagen as a part of the BWF “in‐competition” testing program. The sample collection took place immediately after the athlete had won his semi‐final match. His sample tested positive on Dexamethasone, which is prohibited substance according the World Anti-Doping Agency (WADA) prohibited list of 2014. It is regarded as a specified substance.

History
The requested B sample analysis confirmed the findings of the A sample. The athlete requested a reanalysis of an earlier out-of-competition sample for the presence of Dexamethasone. The reason for this request was that he had become aware, that on 17 July 2014, when undergoing stem cell therapy for multiple injuries at the Kuala Lumpur Sports Medicine Centre, and while under anesthesia, Mr. Lee was administered Dexamethasone without his own knowledge. This analysis confirmed the presence of Dexamethanose.
However In the Panels opinion the most likely reason for the Adverse Analytical Finding was that the athlete had consumed Cordyseps capsules and that (one or more) of the gelatin capsule shells was contaminated with Dexamethasone. How the contamination occurred is not known for sure, but most likely it occurred during the process of grinding the raw Cordyseps into powder and putting this powdered Cordyseps into the gelatin capsules in the shop in Kuala Lumpur. Dexamethasone is not a performance‐enhancing substance. The Panel rules out the possibility that the athlete or his support team should have brought Dexamethasone into his system intentionally. The panel is convinced that this is not a case of doping with an intent to cheat. The defence has strongly argued that Lee Chong Wei was not at fault and was not negligent. In the opinion of the Panel, despite the arguments of the defence, Mr. Lee Chong Wei has been negligent. The Panel concluded that the athlete has established – on a balance of probability ‐ how Dexamethasone entered his body. The Anti‐Doping Rule Violation involves Dexamethasone, which is a Specified Substance. The athlete must establish to the comfortable satisfaction of the Hearing Panel the absence of intent to enhance the sport performance or mask the use of a performance‐enhancing substance. The Panel underlines that Lee Chong Wei did not know that by consuming the Cordyseps capsules, he also ingested Dexamthasone. He was negligent, but did not act with intent. When he did not know or realized that he had ingested a specified substance (Dexamethasone), he cannot have intended to enhance his sporting performance by the unwitting ingestion.

Decision
- The athlete is sanctioned with a period of ineligibility of eight months, commencing on August 30, 2014.
- His result in the BWF World Championship 2014 shall be disqualified and world ranking points forfeited.
- Results obtained between 30th August 2014 and 2nd October 2014 shall not be affected by the decision of the Panel.
- Each party shall bear its own legal costs and other expenses incurred in connection with this Doping Panel Hearing.

Facts
The Dutch Rugby Union (Nederlandse Rugby Bond, NRB) charged the player for a violation of the Anti-Doping rules. During an in-competition doping test the player provided samples for doping test purposes. Analysis of the sample showed the presence of a metabolite of cannabis. Cannabis is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list of 2010.

History
The player had taken so called space cake during a social meeting with friends. This was the cause for the positive test and his friends proved this by testimony.

Decision
- The sanction is a warning and a reprimand.
- The provisional suspension is lifted.

Facts
The Dutch Taekwondo Union (Taekwondo Bond Nederland, TBN) reported a violation of the Anti-Doping rules. During a contest the athlete provided a sample for doping test purposes. His sample showed the presence of metabolites of sibutramine. Sibutramine is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list of 2009 and is regarded as a specified substance.

History
The athlete was notified and put on voluntary suspension, the TBN was late in reporting the doing violation, it was not done within six weeks. Also the Anti-doping Authority Netherlands (Dopingautoriteit, DA) failed to remind the TBN of his duty.
The time to react is important for the athlete regarding the consequences for the positive result.
All this makes the case inadmissible in the view of the disciplinary committee, which is confirmed by the appeal committee.

Decision
- The athlete is acquitted.
- The voluntary suspension ends on the date of this decision.

Facts
The Royal Netherlands Power Sport and Fitness Federation (Koninklijke Nederlandse Krachtsport en Fitnessfederatie, KNKF) charged the athlete for a violation of the Anti-Doping Rules. During an in-competition doping test a sample for doping test purposes was provided. The sample tested positive on a metabolite of metandienone. Metandienone is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list of 2010, it is regarded as a non-specified substance.

History
The athlete sent a written defence and waived his right for a hearing, the case was handled in writing. The athlete claims that the prohibited substance must have entered his body because he had used an unknown food supplement from a friend. He had not checked the ingredients.
The panel concludes that the explanation was based on assumptions, he failed to proof how the prohibited substance had entered his body. However it is the personal responsibility for the athlete to take care no prohibited substances can enter his body, for this reason there is no reduction in the standard period of ineligibility, also there were no aggravating circumstances.

Decision
- The sanction is a period of ineligibility of two years, starting from the day of the decision, with reduction of the period spent in voluntary suspension.
- The athlete will bear the costs for the proceedings of the disciplinary committee.

CAS OG 04/004 David Munyasia v. International Olympic Committee

CAS ad hoc Division (OG Athens) 04/004 David Munyasia v. International Olympic Committee (IOC)

CAS arbitration N° CAS OG 04/004 Mr. David Munyasia vs International Olympic Committee (IOC)

Related case:

IOC 2004 IOC vs David Munyasia
August 10, 2004

• Boxing
• Doping (cathine)
• Jurisdiction of the CAS ad hoc Division in case of exclusion from the Olympic Games and withdrawal of the Olympic accreditation

If an appeal is lodged against a decision of exclusion from the Olympic Games and withdrawal of the Olympic accreditation, the jurisdiction of the CAS ad hoc Division is to confirm or reverse the decision of the IOC Executive Board. Any submission regarding deferral of the decision until further analysis of the urine had been undertaken and the implications thereof must be made before the International Federation within whose competence it is to further sanction or not sanction the athlete.

Mr. David Munyasia is a Kenyan Athlete competing in the boxing event at the Athens 2004 Olympic Games.

In August 2004 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 Cathine.

On 29 August 2004 the IOC Executive Board unanimously concluded that the Athlete had committed an anti-doping rule violation and decided to exclude the Athlete from the Athens 2004 Olympic Games. Thereupon the Board requested the International Boxing Association (AIBA) to consider any further action within its own competence.

Hereafter the Athlete appealed the IOC decision with the Court of Arbitration for Sport ad hoc Division.

The Athlete denied the use of prohibited substances during his career, he asserted that he was tested before without issues and that he had only used antibiotics.

The Panel finds that a doping offence has been established after a prohibited substance was founde in his samples and it cannot accept the request for deferral of the IOC-decision. Any submission regarding further lab analysis are properly made before the AIBA.

Therefore the CAS ad hoc Division confirms the IOC decision and decides on 15 August 2004 to reject the Athlete’s appeal.

CAS 2013/A/3170 Omar Andres Pinzon Garcia v. Federación Colombiana de Natación (FECNA)

• Aquatics (swimming)
• Doping (cocaine)
• Absence of and deficiencies in the external and internal chains of custody
• Failure to submit the laboratory’s Standard Operating Procedure
• Shift of the burden of proof

1. Complete absence of an external chain of custody and multiple deficiencies in the internal chain of custody affect in a very material way the evaluation of a laboratory’s Adverse Analytical Finding (AAF). The absence of this information is a breach of the WADA International Standard for Laboratories (ISL).

2. The failure for the anti-doping organisation to duly submit the laboratory’s Standard Operating Procedure (SOP) makes it impossible for the athlete to verify if the laboratory followed its own SOP, as is required under the WADA ISL. Therefore, the presumption that the laboratory has conducted its sample analysis in accordance with the ISL cannot be enforced against the athlete.

3. Due to the breaches of the WADA ISL the laboratory does not have the benefit of the presumption set out in the WADA Code for WADA accredited laboratories and the burden of proof therefore shifts to the anti-doping organisation to prove that the violations in the laboratory did not cause the AAF.

In November 2012 the Colombian Swimming Federation (FECNA) reported an anti-doping rule violation against the Athlete Omar Pinzon after his A and B samples tested positive for the prohibited substance cocaine.

On 5 April 2013 the FECNA Disciplinary Commission decided to impose a 2 year period of ineligibility on the Athlete. Also his appeal was denied by FECNA in April 2012. Hereafter in May 2013 the Athlete appealed his case with the Court of Arbitration for Sport (CAS).

The Athlete contended that there is no documentation or information provided as to where the Athlete' sample was kept.
He asserted that the Laboratory Documentation Package revealed several irregularities and gaps in the Chain of Custody of the Sample and Aliquots within the Lab.

The test method utilized by the Lab to detect the presence of cocaine is not the standard test for cocaine. The results of the Lab are inconsistent with biology. In addition, the Athlete produced the results of a polygraph examination he voluntarily attended.

During the examination, the Athlete denied using any form of cocaine in the last two years and was found to have been answering truthfully.

FECNA declined to attend the hearing based upon self-declared financial exigencies and did not take up the Panel's offer to participate in the hearing by video conference call.

The Panel establishes that the sample collection process was not proven by FECNA and the sample was unaccounted for during a three day time period. There were also two difficulties with the Lab documentation.

First, there is no documentation of what was done with the screening samples after they were aliquoted on 25 November 2012 and the screening analysis of 20 November 2012. There is also no documentation showing the identity of the individuals who prepared the aliquots or the individuals who obtained the aliquot for analysis. The chain of custody of the bottles lacking in proper recording of transfers and storage.

In view of the filed evidence the Panel concludes that there may well have been open Aliquots the possession of which by various Lab personnel is unknown. Therefore, the suggestion that something happened to the urine sample in the Lab is a real possibility. The internal chain of custody, like its external counterpart, breaches the standards.

Therefore the Court of Arbitration for Sport decides on 7 April 2014 that:

1.) The appeal filed by Omar Pinzon on 13 May 2013 is upheld.

2.) The final decision of the FECNA Discipline Commission dated 22 April 2013 confirming its preliminary judgement of first instance dated 5 April 2013 is set aside.

3.) Any results, medals or prize money and diplomas that may have been set aside by the FECNA Disciplinary Commission are to be reinstated.

4.) (…).

5.) (…).

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

Cocaine, Doping and the Court of Arbitration for Sport -- 'I Don't Like the Drugs, But the Drugs Like Me' / Duval, Antoine, (April 29, 2014). Available at SSRN: http://ssrn.com/abstract=2430901 or http://dx.doi.org/10.2139/ssrn.2430901

Cocaine is one of the most widely consumed drugs in the world. It is also one of the most often detected stimulants by anti-doping authorities. Indeed, cocaine poses serious difficulties to sporting tribunals, as it challenges the legal boundaries of the World Anti Doping Code (WADC) drafted by the World Anti Doping Agency (WADA). Where does the private life of an athlete start and where does it end? Are there any legal mechanisms in place to take in account the specific context that has lead to the contamination of an athlete? Is the sporting justice, and especially the Court of Arbitration for sport (CAS), showing clemency in regard to cocaine cases? In order to tackle these concerns, Section 1 will introduce the WADC 2009 rules. Thereafter, we will review the case law of the CAS on cocaine in Section 2 and draw some conclusions on the strict interpretation of the WADC by the CAS in Section 3. The new WADC 2015 and its potential repercussions in the context of cocaine cases will be discussed in Section 4. We will conclude by urging the CAS to make a long-overdue interpretative turn in anti-doping cases, leaving more room for contextual analysis and flexibility in the enforcement phase of the WADC.