CAS 2014/A/2 Drug Free Sport New Zealand v. Kris Gemmell

Related cases:

• ST 2013_08 DFSNZ vs Kris Gemmell
  February 12, 2014
• ST 2015_01 Kris Gemmell vs DFSNZ
  January 26, 2015

In December 2013 Drug Free Sport New Zealand (DFSNZ) reported an anti-doping rule violation against the Athlete Kris Gemmell for 3 Whereabouts Filing Failures within an 18 month period. However on 12 February 2014 the Sports Tribunal of New Zealand dismissed the charges against the Athlete.

In first instance the Tribunal decided that DFSNZ had not established the First Whereabouts Failure had occurred because DCO had not done what was reasonable in the circumstances to locate the Athlete. As the First Whereabouts Failure was not established, the Tribunal did not determine whether the Second or Third Whereabouts Failures had occurred.

Hereafter in March 2014 DFSNZ appealed the Decision with the Court of Arbitration for Sport. The Panel assessed the following issues:

1.) Did the Tribunal err in its interpretation of and application of Article 11.4.3(c) of the IST?

2.) Reasonableness of Steps Taken to Locate the Athlete?

3.) Did the Athlete fail to be “present and available”?

4.) Second Whereabouts Failure

5.) Third Whereabouts Failures

6.) Does the lex mitior principle apply?

7.) Were any of the three alleged breaches/failures “inexcusable”?

8.) What is the appropriate sanction?

The Panel concludes that Mr Gemmell has committed an ADRV under Rule 3.4 of the SADR and that the lex mitior rule has no application. The Panel deems that the Athlete was not trying to avoid the testing regime on any of three occasions which constituted the missed tests in this matter.

The Panel finds that there was some excuse for the first and third missed tests whilst the second missed test (or filing failure) was inexcusable. The Athlete was undoubtedly careless in respect of the first and third missed tests even though, as the Panel has found, it was not “inexcusable” for him to miss those tests.

Therefore the Court of Arbitration for Sport decides on 1 December 2014 that:

• The appeal filed by DFSNZ is upheld and the decision of the STNZ is set aside.
• The period of ineligibility will last 15 months and commences on February 12, 2014.
• Each party shall bear it's own costs and other expenses in order with this arbitration.
• All other motions or requests for relief are dismissed.

Related cases:

• CAS 2014_A_2 DFSNZ vs Kris Gemmell
  December 1, 2014
• ST 2015_01 Kris Gemmell vs DFSNZ
  January 26, 2015

Facts
Drug Free Sport New Zealand (DFSNZ) filed an application for an Anti-Doping Rule Violation against Kris Gemmell, the athlete, in respect of two missed tests and a filing failure and, as a result, DFSNZ alleged the athlete had committed a “whereabouts” anti-doping rule violation. A violation is established when there were three missed tests and/or filing failures within an 18 month period. The factual assertions made by DFSNZ are:
- a missed test on August 28, 2012
- a filing failure on July 16, 2013 and
- a missed test on September 13, 2013.

History
The athlete denied he committed a whereabouts breach on August 28, 2012, and said that he was at the address given for his whereabouts in his relevant quarterly filing, he did not hear the tester at the door. In respect of the breaches on July 16 and September 13, 2013, he asserts no negligence on his part.
The panel considered: the case depended on establishing the specific facts to establish such a breach. On the evidence we have decided that the facts do not sufficiently establish a breach in respect to the 28 August charge including that the doping control officer did not do all that was reasonable to make contact.

Decision
The charge filed by DFSNZ is dismissed on 12 February 2014 by the Tribunal.

CAS 1995/141 Anne Chagnaud vs FINA
TAS 95/141 C. / Fédération Internationale de Natation Amateur (FINA)

• Dopage d'une nageuse (étiléfrine)
• Disqualification et suspension de deux ans
• Responsabilité objective de la nageuse même en l'absence de faute
• Prise en considération de circonstances atténuantes

1. Selon le règlement de la FINA, la seule présence d'une substance interdite, telle que l'étiléfrine, dans le corps d'une athlète constitue une infraction, entraînant une suspension automatique de deux ans.

2. Le fait que la nageuse n'ait pas eu l'intention de se doper et qu'elle ait été dopée à son insu ne peut remettre en cause sa disqualification.

3. C'est au niveau de la sanction disciplinaire (suspension de l'athlète ayant subi un contrôle positif) que les éléments subjectifs de chaque cas doivent être pris en considération. Le principe de présomption de culpabilité de l'athlète doit demeurer, mais, par contre, l'athlète doit avoir la possibilité de renverser cette présomption en apportant une preuve libératoire.

FACTS
Anne Chagnaud, the athlete, appeals before the Court of Arbitration for Sport (CAS) against the decision, dated July 27, 1995, of the FINA Executive Office.

History
On January 28, 1995, the athlete provided a sample for an in-competition doping test. The sample tested positive for the prohibited substance etilefrine. Her trainer had given her a capsule of effertil which contained the prohibited substance, together with her nourishment. The French Swimming Federation (FFN) disciplinary body didn't sanction the athlete in her decision of July 7, 1995. In their view it had been impossible for the athlete to have known she ingested a prohibited substance.
The International Swimming Federation (FINA) Executive Office didn't agree with this decision and sanctioned the athlete with a period of ineligibility of two years.

On August 10, 1995, the athlete submitted a declaration of appeal before the CAS. But FINA had made a mistake in her decision of July 27, 1995, about where she could appeal. She could appeal to the FINA's Board. On September 1995 the athlete appealed to the FINA's Board against the decision of July 27, 1995, by the FINA Executive Office. The appeal was rejected because the panel regards the positive test as sufficient to establish the violation.

Submissions athlete
The athlete criticizes the system of responsibility without fault. Even though she does not contest the result of the tests, she however argues that the alleged substance was not substantial enough to improve her performance. Besides that she argues that her penalty is unjust, since she was doped without her knowledge by her trainer and she had no intention of consuming capsules of effortil (containing etilefrine), the athlete insists on the disproportionate nature of the penalty.

However the court concludes that the testimonies of her trainer did not permit to establish if he had acted without her knowing consuming the prohibited substance. However, in view of the facts of the brief, the court considers that the penalty pronounced against the appellant is not proportionate to the circumstance of the case. In view of what comes before and in application of the principle of proportionality, the court considers that the fault of the appellant is not sufficiently grave for a period of ineligibility lasting two years. The penalty will last till the day of this hearing, the period from January 28, 1995 through march 12, 1996, which is in corresponds to the guilt of the athlete and is consequently sufficient.

Decision
- The decision in partially upheld.
- The decision of suspension pronounced by FINA against the appellant on October 21, 1995 is terminated immediately.
- The decision is rendered without cost, except for the fee of 500 Swiss francs claimed by CAS.
- FINA will contribute 1,500 Swiss francs to the legal fees of the appellant.

[The attached file contains the French text and an unauthorized English translation]

Facts
The International Swimming Federation (FINA) charged Corrie Clark, the athlete, for a violation of the Anti-Doping Rules. On August 14, 2003, the athlete provided urine samples during the Pan American Games held in Santa Domingo (DOM). The A sample showed the presence of caffeine above the threshold value. Caffeine is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list of 2003.

History
The Pan American Sport Organisation (PASO) Executive Commission had informed FINA about the positive findings in the sample, also the B-sample was analysed and confirmed the finding of caffeine in the A-sample. The FINA doping panel didn't receive any reaction of the athlete or her representative. The panel decided to take judgement without a verbal hearing.
The representative of the athlete had sent a letter to the FINA. He referred to the fact that WADA had determined that caffeine is not a performance-enhancing substance on the prohibited list of 2004. Also he stated that the value measured was slightly over the limit allowed. The athlete had never before found positive after a doping test.
The panel concludes that there was a violation according the ruling of 2003 notwithstanding the concentration. Because caffeine is removed from the prohibited list in effect since the first of January 2004, the panel applied in this case the principle of Lex Mitior.
[PASO disqualified the results obtained at the Pan American Games, it was not notified that there was no sanction.]

Decision
- The athlete did commit a Anti-Doping Rule violation, according the principle of lex mitior she is acquitted.

TAS 96/156 Jessica K. Foschi vs FINA

Facts
Jessica Foschi, appellant, appeals against the decision of the executive committee The FINA, respondent, dated June 21, 1996. The Appellant had provided samples for doping control purposes on August 4, 1995, in a post event doping control. The samples (A and B) showed the presence a metabolite of the prohibited substance mesterolone.

History
Appellant, her parents and her coach consistently denied having knowingly taken or given the prohibited substance. They even underwent a polygraph examination. The father of the appellant hired a private investigator to find out if an intentional act by another person (sabotage) could explain the positive test. No conclusive results were produced.
On October 30, 1995, appellant appeared before the USS's (United States Swimming) National Board of Review and they imposed a sanction of two year probation from the date of decision November 2, 1995. Appellant appealed against this decision but the majority of the USS Board found that Appellant didn't rebut the presumption of doping. It imposed a two year suspension on Appellant starting August 4, 1995.
Appellant invoked her right to make a final appeal to the American Arbitration Association (AAA). The hearing was held on February 29 and March 1, 1996. This panel reinstates the appellant because the imposed sanctions violated fundamental fairness and were arbitrary and capricious.
The FINA executive held a hearing on June 20, 1996, in Lausanne (Switzerland). The FINA executive decision, dated June 21, 1996, was a two years suspension in accordance with the FINA rules beginning on August 4, 1995.
Appellant appeals against the decision of the FINA executive but in a meeting, without notice to or the presence of the appellant, they unanimously rejected the appeal.
On September 3, 1996, appellant filed a declaration of appeal against the decision of the FINA Bureau with the CAS in Lausanne, which was granted.

Submissions appellant:
- The samples were never retested.
- There were irregularities in the urine collection process.
- There had been inadequate security at the meet on August 4, 1995, enabling a third party to add something containing mesterolone to her food or drink without her knowledge.
- Appellant made the suggestion that the consumption of chicken meat could have caused the positive test.
- The FINA Executive violated it's obligation to provide appellant a fair hearing.
- The appeal proceedings before the FINA Bureau did not comfort with any concept of any due process, fundamental fairness or natural justice.
- The decision issued by the FINA Executive did not comfort with any concept of any due process, fundamental fairness or natural justice.
- Her performance was not enhanced which should require dismissal of her case.
- The refusal to permit an independent laboratory to test the samples violated the right to a fair hearing. By this the Appellant can't question the findings and suggest a cover up for a laboratory mistake (the test of the B-sample was aborted and re-run).

submissions respondent:
- The doping test performed was correct and proper.
- There is no evidence that the results of her test have been wrong or tampered with by the UCLA laboratory.
- The burden of establishing how the prohibited substance had entered the body rests entirely on the athlete.
- The strict liability principle is not put in question.
- The specific substance mesterolone doesn't allow a reduction of the sentence.
- Polygraph test are not accepted as evidence.

Submissions Panel:
The panel concludes that the performed test procedures were correct however there can be a flexibility in the sanction within the FINA rules. The suggestion that the positive result came from eating chicken is pure speculation.
The consumption of mesterolone knowingly at a time when appellant knew that it was likely to be tested and at a time when the substance would not enhance performance considers a lesser degree of guilt.

Conduct of the parties:
- Appellant has shown herself to be co-operative and has taken nearly and perhaps even every, conceivable step possible in order to try and prove that she is without fault.
- Respondent's conduct has lacked correctness in various ways.

Decision
- The decision of the FINA Executive Office of June 21, 1996, confirmed by the FINA Bureau on August 3, 1996 is reversed.
- The appellant is found to have committed an offence and is suspended for a period of six months from August 4, 1195 to February 3, 1996.
- The respondent has to pay the appellant as contribution towards her expenses 15,000 Swiss Francs.

TAS 98/189 Michael Dionne and US Bobsled & Skeleton Federation (USBSF) vs. Fédération Internationale de Bobsleigh et de Tobogganing (FIBT)

Facts
Michael Dionne, appellant and the United States Bobsled and Skeleton Federation (USBSF) appeal against the decision of the executive committee of the International Bobsleigh and Tobogganing Federation (FIBT). Appellant had been sanctioned with a period of ineligibility of three months for being positive tested for the prohibited substance ephedrine (A and B sample). The reason was the use of products against a cold which contained the prohibited substance. Appellant appealed because he believes the sanction was too harshly and he wanted to have the opportunity to take part in the Olympic Games of Nagano.

History
The representative of the appellant took the position that the three month suspension would violate:
- the International Olympic Committee (IOC) Medical code,
- the FIBT's own rules, and
- principles of fairness and proportionality reflected in previous decisions of the CAS.
The FIBT maintains that the appeal must fail because appellant didn't exhausted internal remedies within the FIBT rules. However the arbitrator remarks that it may be useful for the FIBT to reexamine and clarify its own procedure for appeals.
The arbitrator considers the penalty put upon the appellant and concludes that it was the lowest possible.
I was taken in consideration that the appellant wasn't cheating but careless towards the use of supplements.

Decision
1. The FIBT decision regarding appellant is upheld.
2. In the circumstances, the sanction thus confirmed is not considered to affect the status of appellant as an accredited member of the U.S. Olympic Team.
3. The application has not occasioned significant costs. There is no award in that regard.
4. This award shall immediately be made public.

Related case:
FINA 2016 FINA vs Vitalii Melnikov
November 8, 2016

In March 2014 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Russian Athlete Vitalii Melnikov after his sample tested positive for the prohibited substance
Erythropoietin (EPO).
After notification the Athlete submitted that he would not file a statement in his defence and that he waived his right to be heard. He made a request for substantial assistance in order to find out if a third party was involved.

The Panel finds that despite being provided the opportunity to give information and benefit from a defence in which he could have pleaded substantial assistance in discovering or establishing anti-doping rule violations, Mr. Melnikov did not seize the possibility.

Therefore the FINA Doping Panel decides on 13 March 2015 to impose a 2 year period of ineligibility on the Athlete starting on the date of the sample collection, i.e. on 12 December 2013.

Facts
The United Kingdom Anti-Doping (UKAD) had charged James Lockwood, the athlete, for a violation of the Anti-Doping Rules. On November 19, 2014, UKAD collected an out-of-competition sample from the Athlete for doping test purposes. His sample didn't show any prohibited substances, however the UKAD instructed the Laboratory to conduct a test for growth hormone releasing factors. The laboratory detected growth hormone releasing peptide-2 (pralmorelin) (‘GHRP-2’) and its metabolite which resulted in a positive test analysis on the A sample. GHRP-2 is a prohibited substance according the World Anti-Doping Agency (WADA) 2014 prohibited list.

History
The Athlete admitted the charge and waived his right to have the B
Sample analysed. The Athlete has been subject to a provisional suspension since the date of the charge.

Decision
The period of Ineligibility of two (2) years is imposed.
The period of Ineligibility commenced from March 3,2015 and will end at midnight on March 2, 2017.

Facts
Claiment, the United States Anti-Doping Agency (USADA) had charged Mohamed Trafeh, the respondent, for the following violations of the Anti-Doping Rules:
1. Use and attempted use of the prohibited substance erythropoietin ("EPO").
2. Possession of EPO, trafficking and attempted trafficking of EPO
3. Trafficking and attempted trafficking of EPO.
4. Administration and attempted administration to others of EPO.
5. Assisting, encouraging, aiding, abetting, covering up and other complicity involving one or more anti-doping rule violations and/or attempted anti-doping rule violations.
6. Evading sample collection
7. Aggravating circumstances justifying a period of ineligibility greater than the standard sanction.

History
USADA's charging decision was premised on evidence it obtained from a variety of resources, including physical evidence obtained from the respondent by the United Stales Department of Homeland Security, fabricated whereabouts records, public admissions and a partial confession given to USADA's Investigator and Legal Affairs Director. On February 8, 2014, the Respondent was detained by the United Stales Department of Homeland Security (DHS) while attempting to smuggle six syringes of an "unknown substance" into the United States. The discovery of the syringes was made during a search of Respondent's luggage following his arrival at John F. Kennedy ("JFK") lnternational Airport in New York.

According to USADA records, on February 13,2014, USADA attempted to carry out an out-of-competition sample collection at Respondent's listed residence in Bouskoura, Morocco, based on the 1e quarter of 2014, Whereabouts Filing Respondent submitted to USADA on December 31, 2013. The testing attempt was unsuccessful because respondent was not at his residence as his Whereabouts Filing indicated he would be at that time. The respondent had claimed that he went to an emergency with a sick family member, and corrected his whereabouts, but later also the correction was false, he intentionally submitted false whereabouts information.
In response to receiving information regarding the potential for a reduced period of ineligibility, Respondent agreed to provide USADA with detailed information regarding the doping activities of others of which he was a ware as well as a full account of his own past doping activities.

Decision
- Respondent shall receive a period of ineligibility of four years commencing January 1, 2012 and ending on December 31, 2015. Respondent shall be disqualified from all sporting events in which he participated from the period January 1, 2012 to the date of this ruling. Furthermore, all benefits, awards, titles, medals, points, or remuneration from his participation in sport that flowed to respondent, from the period January I, 2012 to the date oft his ruling, shall be deemed forfeited and shall be returned to the relevant body.
- During his period of ineligibility, in addition to all other penalties or restrictions flowing from his ineligibility, the respondent is prohibited from participating in and having access to the training facilities or programs of the United States Olympic Committee (USOC) and any National Government body (NGB), or other programs and activities of the USOC and any NGB, including, but not limited to, grants, awards, or employment pursuant to the USOC Policies.
- The parties shall bear their own attorney's fees and costs associated with this arbitration.
- The administrative fees and expenses of the American Arbitration Association, and the compensation and expenses of the Arbitrator, shall be borne as incurred.
- This Award is in full settlement of all claims submitted to this Arbitration.
- All claims not expressly granted herein are hereby denied.

Facts
United States Anti-Doping Agency (USADA), claimant, charged Jon Drummond, respondent, for a violation of the Anti-Doping rules (ADR). The respondent was accused of:
- Possession of Dehydroepiandrosterone (DHEA);
- Trafficking of DHEA;
- Attempted trafficking of DHEA, human Growth Hormone (HGH), Insulin-like Growth Factor-1 (IGF-1) and/or testosterone;
- Assisting, encouraging, aiding, abetting, covering up and other complicity involving one or more anti-doping rule ADR violations and/or attempted anti-doping violations; and
- Aggravating circumstances justifying a period of ineligibility greater than the standard sanction.

History
The respondent had denied the allegations.
Respondent had been the personal coach for Tyson Gay and was also the coach of the U.S. Olympic Relay team for the London Olympic Games. In 2013 Tyson Gay tested positive for DHEA. Gay told USADA that his coach had encouraged him to use the creams from Dr. Gibson, his chiropractor, and that DR. Gibson had injected him with substances from the bag during 2012. Tyson Gay had been sanctioned with a period of ineligibility of one year.

Decision
1. Respondent violated the ADR for the possesion of DHEA.
2. Respondent violated the ADR for trafficking DHEA.
3. Respondent violated the ADR the administration of DHEA and administration of HGH and/or testosterone by assisting, encouraging, aiding, covering up and other complicity involving on or more ADR or attempted ADR.
4. The period of ineligibility was an 8 year period of ineligibility commencing on the date of this award.
5. The Administration fees and expenses of the American Arbitration Association (AAA)