CAS 2013/A/3437 International Shooting Sport Federation (ISSF) v. World Anti-Doping Agency (WADA)

CAS 2013/A/3437 International Shooting Sport Federation (ISSF) v. World Anti-Doping Agency (WADA), award of 18 December 2014 (operative part of 4 August 2014)

• Shooting sport
• Doping (atenolol)
• Non-participation in the proceedings and procedural fairness
• Standing to be sued under Swiss law
• Consequence of not identifying all proper respondents in an appeal to the CAS
• Criteria for granting a TUE according to the WADA Code.
• Defence based on materially similar cases
• Right to sport

1. If, as a matter of form, a person is not a respondent but has been given proper notice of the appeal and a proper opportunity to participate in the appeal, such a person (or anyone else) cannot complain of any lack of procedural fairness if a deliberate choice is made not to participate.

2. Under Swiss law, the defending party has standing to be sued (“légitimation passive”) if it is personally obliged by the “disputed rights” at stake. In other words, a party has standing to be sued and thus may be summoned before CAS only if it has some stake in the dispute because something is sought against it.

3. As a general rule, the appellant is obliged to identify the proper respondent at the outset of the procedure. The consequence of not identifying all proper respondents is not that the appeal is wholly inadmissible but only that the CAS panel may decline to make any orders against a person who is a proper respondent but has not been joined or may limit
the scope of its review to the orders sought against the party properly joined as a respondent.

4. All the four criteria enumerated in the WADA Code have to be fulfilled for the grant of a TUE. That is the impact of the words “in strict accordance”. Furthermore, the burden of establishing satisfaction of the four criteria rests on the athlete.

5. In CAS cases on appropriate sanctions for doping violations where the athlete prays in aid a defence of no fault or no significant fault she/he not infrequently invokes earlier cases as setting as benchmark. But in those cases CAS has constantly emphasised that the invocation is of no utility before it, unless the defendant and the alleged comparator are materially similar. The same philosophy is exemplified in the area of antidiscrimination law in all its modern variety.

6. While all human rights instruments recognize that there is a right to life, none recognize that there is an equivalent right to sport.

On 12 September 2013 the ISSF Therapeutic Use Exemption Committee (ISSF TUEC) denied the Athlete's TUE request for the use of the medication Atenolol. Thereupon in October 2013 the Athlete requested WADA to review this TUE application.

On 29 November 2013, the WADA Therapeutic Use Exemption Committee (WADA TUEC) decided to set aside the ISSF TUEC Decision and to allow the use of the medication for a period of 4 years.

Hereafter in December 2013 the ISSF appealed the WADA decision with the Court of Arbitration for Sport (CAS). The ISSF requested the Panel to set aside the Appealed Decision and to reject the Athlete's TUE application.

The CAS Panel finds that this is a case which juxtaposes in an unusual fashion two conflicting interests, on the one hand the desire of a young athlete of apparent early promise but adventitiously diagnosed with a potentially fatal heart condition to participate, at the highest level, in her chosen sport, on the other hand the entitlement of her potential competitors to be confident they are not asked to challenge an athlete with an unfair advantage induced by prohibited substances.

The issue for the Panel is not whether the Athlete has done all that she could do to provide evidence but whether the evidence which she has actually provided is sufficient to establish that the criterion in 4.1(b) is satisfied. The Panel concludes that it is not.

Therefore the Court of Arbitration for Sport decides on 18 December 2014 that:

1.) The appeal filed on 18 December 2013 by the International Shooting Sport Federation is upheld and the decision adopted by the Therapeutic Use Exemption Committee of the World Anti-Doping Agency on 29 November 2013 set aside.

2.) The decision adopted by the Therapeutic Use Exemption Committee of the International Shooting Sport Federation on 12 September 2013 is confirmed.

3.) (…).

4.) (…).

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

Nuwan Hettiarachchi (26) from Sri Lanka was suspended for six months after taking a natural remedy that was contaminated.

World Rugby has confirmed that Sri Lanka player Nuwan Hettiarachchi has received a six-month suspension for an anti-doping rule violation.

The 26-year-old underwent an in-competition doping control undertaken at the 2014 Asian 5 Nations match between Sri Lanka and Philippines in Colombo, Sri Lanka. Under analysis, his sample was revealed to contain prednisolone, classified under S9.Glucocorticosteroids on the World Anti-Doping Agency’s 2014 list of prohibited substances.

The player accepted that he had committed an anti-doping rule violation contrary to Regulation 21.1.1 but maintained that there was no intention to enhance sport performance and no fault on his part.

The player has, for some time, experienced asthmatic and respiratory conditions as a result of allergies. He had previously relied on what he described as “western medical treatments” for these conditions, to no avail. He then turned to ayurveda, a system of traditional indigenous medicine in Sri Lanka and he noticed his condition improving.

When he developed a cough and cold, he obtained some ayurvedic medicine from a practitioner in his home town, Kandy, but he did not show the practitioner a copy of the prohibited list and he did not consult with a qualified medical doctor, sports doctor or his union before using it. It was his contention that prednisolone was added to this ayurvedic remedy without his knowledge.

The committee felt there was no reason to disbelieve the player’s evidence that he took the medicine to treat his cough and allergies, not to enhance his performance. It felt that the player was entitled to the benefit of a reduced sanction due to his use of a specified substance while ultimately still being at fault.

In considering all aspects of the case, the committee decided to impose a six-month suspension. Given the player had been provisionally suspended since 7 July 2014, the suspension is now complete and he is free to resume participation.

Claimant, the United States Anti-Doping Agency ("USADA"), has alleged that Respondent, Dr. Geert Leinders, committed a number of doping offenses in violation of the Union Cycliste Internationale Anti-Doping Rules ("UCI ADR"), the World Anti-Doping Code ("WADC"), and the USADA Protocol for Olympic and Paralympic Movement Testing ("USADA Protocol"). Those alleged doping offenses include possession of prohibited substances and/or methods; trafficking of prohibited substances and/or methods; administration and/or attempted administration of prohibited substances and/or methods; and assisting, encouraging, aiding, abetting, covering up and other complicity involving anti-doping rule violations, USADA also asserts that the alleged doping offenses involve aggravating circumstances justifying a lifetime period of ineligibility.

For the reasons described in this award, the Panel has determined that, based on the evidence presented to it and the arguments and submissions of counsel, USADA has met its burden of proof and established to the Panel's comfortable satisfaction that Dr. Leinders committed each of the alleged doping offenses within the applicable statute of limitations.
For the reasons described more fully below, the Panel imposes a lifetime period of ineligibility as the sanction for Dr. Leinders' doping offences.

The Arbitrators therefore rule as follows:

1.) USADA has sustained its burden of proving to the Panel's comfortable satisfaction that Dr. Leinders committed the following doping offenses on or after June 22,2004:
possession of prohibited substances and/or methods; trafficking of prohibited substances and/or methods; administration and/or attempted administration of prohibited substances and/or
methods; and assisting, encouraging, aiding, abetting, covering up and other complicity involving anti-doping rule violations.
2.) The Panel imposes a lifetime period of ineligibility, commencing on the date of this Award.

Hearing about the Flemish Anti-Doping policy / The Commission for Culture, Youth, Sports and Media. - Brussels : Flanders Parliament, 2013. - (Flanders Parliament Document 2164 (2012-2013) - Nr. 1)
Filed 22 August 2013 (2012-2013)

Hoorzitting over het Vlaamse antidopingbeleid / Commissie voor Cultuur, Jeugd, Sport en Media. - Brussel : Vlaams Parlement, 2013. - (Vlaams Parlement Stuk 2164 (2012-2013 - Nr. 1)
Ingediend op 22 Augustus 2013 (2012-2013)

Rechtbank Zutphen
Sector Straf
Meervoudige kamer
September 5, 2006
06/580332-05

ECLI:NL:RBZUT:2006:AY7518

Facts
Suspect x is charged on three counts: blackmail, wholesale of anabolic steroids and wholesale of unregistered medicines.

History
Besides the blackmail and intimidation it was established that the accused, in the period from September 1, 2005 to November 13, 2005, in the municipality of Apeldoorn (the Netherlands), had prepared medicines and drugs (anabolic sterioids) for which he was not entitled. He also delivered unregistered pharmaceutical products (anti asthma products) without a licence.

Decision
Accused is sentenced to a term of 30 months imprisonment,
from which 10 months are conditionally.

Stimulating cases tracked down: evaluation of amendment of the act for the fight against doping in sport / J. Snippe, C. Ogier, H. Naayer, B. Bieleman. - Intraval ; i.o.v. ministerie van Justitie. - Groningen : Intraval, 2005
ISBN 9077115676

SUMMARY
Abuse of doping substances may lead to various risks for public health such as injuries due to improper use or due to the use of a product that has been prepared under suspicious circumstances, or injuries because veterinary drugs are mixed with human drugs. An important aim of the doping policy is to fight the use of doping substances in top sport and recreational sport.
To tackle the use of doping substances more effectively, an amendment of the applicable Act came into force in May 2001. The illegal trade in drugs wich are used for doping has now become part of the Economic Offences Act (Wet op de Economische Delicten: WED) while before it was part of the Dutch Provision of Medicine Act (Wet op de Geneesmiddelenvoorziening: WOG). The unauthorised production and delivery of medicines as well as the preparation, selling, delivery, import, trading or keeping in stock for delivery purposes of unregistered medicines are now regarded as economic offences. The objective of the amendment of the Act is to fight the illegal production and trade in medicines and is, therefore, also an approach that can be used more effectively for fighting the production and trade in doping substances. Experience of the investigative services has shown that the low punishment of offences of the Dutch Provision of Medicine Act in particular had an impeding effect on the investigation and prosecution of the illegal production and trade in doping substances. Therefore punishment has been increased with the amendment of the Act and the powers of the investigative services have been extended considerably.

Evaluation
INTRAVAL, bureau for research and consultancy, has evaluated the amendment to the Act on behalf of the Research and Documentation Centre (Wetenschappelijk Onderzoek- en Documentatiecentrum: WODC) of the Dutch Ministry of Justice. INTRAVAL has analysed if the fight against the illegal trade and production of doping substances has improved since the amendment of the Act. Within the framework of the research, interviews have been held with representatives of the organisations involved such as the Dutch Health Care Inspectorate (Inspectie voor de Gezondheidszorg: IGZ), the Economic Surveillance Department of the Inland Revenue Intelligence and Investigations Department (Economische Controle Dienst van de Fiscale Inlichtingen- en Opsporingsdienst: FIODECD), public prosecutors and heads of regional crime squads. In addition to this INTRAVAL has analysed and compared records related to criminal cases before and after the amendment of the Act, has analysed available registration data and has made a study of literature.
The research has shown that there are different bottlenecks. Due to the low priority given to trade in doping, familiarity with doping cases amongst the police and the Public Prosecution Service (Openbaar Ministerie: OM) is slight. As a result, the available number of doping-related cases is limited. It is also quite difficult to find records of doping trade in the registrations of the police and the Public Prosecution Service. In spite of the limitations of the registrations, it seems that most doping cases have been found again. This is also due to the intensive personal approach of investigating and prosecuting officers.

Results
It seems that the number of criminal cases has not increased after the amendment of the Act, but proportionally more doping-related investigations (preliminary to prosecution) have been started. The extended investigative powers have, moreover, been used more
often. The deployment of scarce and expensive investigative resources (telephone taps and surveillance teams) indicates that the Public Prosecution Service is giving higher priority to doping-related cases. A few investigations (preliminary to prosecution) have been started according to the involved parties since the amendment of the Act which would probably not have been carried out should the Act not have been amended. The cooperation between the Public Prosecution Service and the FIOD-ECD with regard to doping investigations seems to have intensified during the last few years. The FIOD-ECD becomes involved in the fight against doping substances because of their fight against various types of fraud, including intellectual property fraud. Frequent use is made of the expertise of the IGZ by all the parties involved in the fight against doping substances and trade, as was the case before the Act was amended. It is unknown to what extent the amendment of the Act has affected the size of the trade and the production of doping substances. Interviews with experts have, however, shown that traders are taking more care. The threat of a more severe punishment and the possible deployment of (extended) investigative resources have lead to them being more selective in their choice of customers. Obtaining doping substances has become more difficult for users because of the above. Doping substances are mainly imported from abroad into the Netherlands. No changes have occurred regarding this either, although there have been slight shifts in the countries of origin.

Conclusion
In spite of the bottlenecks encountered during the research and the information at hand, which is limited in scope, it seems that the contemplated effect of the amendment of the Act - the improvement of the fight against the illegal trade and production of doping
substances - has been achieved. Visible improvements have, in any case, occurred with regard to the effectiveness of the fight against this type of crime. The options to tackle the illegal trade have become greater since the amendment of the Act. The set of instruments available has become broader which has lead to more investigations (preliminary to prosecution). Due to the more severe punishments the Public Prosecution Service has become more eager in starting an investigation into the trade in doping substances. Various investigations (preliminary to prosecution) would not have been carried out without the amendment to the Act.

Rechtbank Oost-Brabant
's-Hertogenbosch
Team strafrecht
Hoger beroep
20-003545-13
October 14, 2014

ECLI:NL:GHSHE:2014:4263

Related case:
Dutch District Court 2013 Prosecutor vs Suspect X - Appeal
October 22, 2013

Facts
Suspect x and public prosecuter appeal against the judgment of the Court of Oost-Brabant of October 22, 2013 in the criminal section number 01-845125-13.

History
Suspect was partial free of charge for the selling of steroids with eventually health hazards for the buyers. The circumstances of the place were the products were discovered was not a sterile environment. However the suspect states he had prepared the product in another place. The court doesn't acknowledge the defence of the suspect. The suspect has proven that he improved his situation and has now a normal job, got married and has no addiction anymore.
The District Court regards the claims of the suspect as inadmissible, the public persecutor was only at one point admissible regarding the health hazards of the sold products. For this the suspect was free of charge but now he is guilty of this point.

Decision
1. The penalty is a imprisonment for a period of one year; the imprisonment will not be enforced, unless the suspect is guilty of a criminal fact before the end of a probation period of two years.
2. Condemns the accused to community service for a period of 60 hours, replaced by 30 days in prison if not properly performed.

Rechtbank Oost-Brabant
's-Hertogenbosch
Team strafrecht
October 22, 2013
Hoger beroep
01/845125-13

ECLI:NL:RBOBR:2013:5776

Related case:
Dutch District Court 2014 Suspect X & Prosecutor vs Court - Appeal
October 14, 2014

Facts
Court Oost-Brabant charges suspect x for violations of medicine acts: the import, preparing and selling of medicines without permit.

History
Suspect had imported or prepared various medicine products without a licence in the period of January 1, 2012, till February 14, 2013. In the same period he had tried to sell these products without a license. Susppect was arrested on February 15, 2013, when his house was investigated a laboratory was discovered. The identified products [only doping related mentioned] were: Clenbuterol, Clomiphene, Stanozolol, Tamoxifen, Testosterone and Trenbolone. Allthough the preparation wasn't done in a sterile environment, there is no proof if the actual preparation wasn't done sterile and if there are health hazards for the buyers.

Decision
Accused is sentenced to community service of 180 hours and a
imprisonment of 270 days of which 165 days conditionally and
two years probation for the import, preparing and selling without permit. He is free of charge for the selling of these products with eventually health hazards for the buyers.

Facts
The Canadian Centre for Ethics in Sport (CCES), Swimming Natation Canada (Swimming Canada) and Coaches of Canada (Coaches) have applied to set aside the 2007 decision of the adjudicator Graeme Mew, dated October 29, 2005, reinstating the Respondent Cecil Thomas George Russell (Russell) as a national level swimming coach on the basis of fraud.

History
In October 1997 Russell was banned for life from participating in sports funded or recognized by the Government of Canada, because he was found to have committed a doping related infraction by reason of his criminal conviction for possession and conspiracy to traffic in anabolic steroids in 1996.
On June 24, 2005 Russell applied for reinstatement for the second time and after a hearing was held in September of 2005, Arbitrator Mew ordered that Russell be reinstated as a swimming coach in Canada. After the arbitration hearing was held the CCES learned from reading newspaper articles in the Globe and Mail and the Toronto Star, that Russell had pleaded and been found guilty of conspiracy to possess with intent to distribute MDMA (ecstasy) in Arizona and was sentenced to a term of four years imprisonment in March of 2004. At his reinstatement hearing before Arbitrator Mew in September of 2005, that Russell did not disclose his conviction for conspiracy to traffic in ecstasy in Arizona in 2004, to Arbitrator Mew.
In this application and motion the Court must decide the following issues:
1. Did Russell’s failure to disclose the material fact of his criminal conviction for a drug-related offence in Arizona in 2004 or the making of false representations in his application for reinstatement, constitute fraud?
2. Does the Superior Court have jurisdiction to hear this application?
3. Should Commission Counsel and his firm be removed from the record?
4. Should the Court strike out the portions of the affidavits which set out the false evidence that is alleged to have been given by Russell at the arbitration hearing, where there was no transcript; and the portions which relate to newspaper articles describing Russell’s admission to assisting an associate to dispose of a murder victim’s body?

Decision
The CCES, Coaches and Swimming Canada application to set aside Arbitrator Mew’s decision on the basis of fraud pursuant to s. 46.(1).9 of the Arbitrations Act of Ontario is granted and the matter is referred back to Arbitrator Mew for reconsideration based on the additional evidence.

Based on records from the Ontario Superior Court of Justice on June 21, 2013, the Athlete Nathan Zettler pleaded guilty to inter alia one count of possession, and two counts of possession for the purpose of trafficking in anabolic steroids. Convictions were registered on June 21, 2013.

Consequently the Canadian Centre for Ethics in Sport (CCES) has reported anti-doping rule violations against the Athlete for the Athlete's subsequent convictions on 3 counts of possession and possession for the purpose of trafficking in anabolic steroids.

Here the Athlete failed to respond to the CCES communications.
Considering aggravating circumstances in this case the SDRCC decides to impose a 4 year period of ineligibilty on the Athlete starting on 8 September 2014.