Widdowson WM, Healy ML, Sönksen PH, Gibney J. The physiology of growth hormone and sport. Growth Horm IGF Res. 2009 Aug;19(4):308-19. Epub 2009 Jun 7.
Zorzoli M, Rossi F. Implementation of the biological passport: the experience of the International Cycling Union. Drug Test Anal. 2010 Nov-Dec;2(11-12):542-7. doi: 10.1002/dta.173.
Detection of EPO doping and blood doping: the haematological module of the Athlete Biological Passport.
Schumacher YO, Saugy M, Pottgiesser T, Robinson N. Detection of EPO doping and blood doping: the haematological module of the Athlete Biological Passport. Drug Test Anal. 2012 Feb 28. doi: 10.1002/dta.406.
Voss SC, Thevis M, Schinkothe T, Schänzer W. Detection of homologous blood transfusion. Int J Sports Med. 2007 Aug;28(8):633-7. Epub 2007 Jul 5.
Velloso CP. Regulation of muscle mass by growth hormone and IGF-I. Br J Pharmacol. 2008 Jun;154(3):557-68.
Koehler K, Braun H, de Marees M, Geyer H, Thevis M, Mester J, Schänzer W. Urinary excretion of exogenous glycerol administration at rest. Drug Test Anal. 2011 Nov-Dec;3(11-12):877-82. doi: 10.1002/dta.355. Epub 2011 Oct 19.
van Rosendal SP, Osborne MA, Fassett RG, Coombes JS. Guidelines for glycerol use in hyperhydration and rehydration associated with exercise. Sports Med. 2010 Feb 1;40(2):113-29. doi: 10.2165/11530760-000000000-00000.
CAS 2009/A/1926 International Tennis Federation (ITF) v. Richard Gasquet
CAS 2009/A/1930 World Anti-Doping Agency (WADA) v. ITF & Richard Gasquet
CAS 2009/A/1926 International Tennis Federation (ITF) v. Richard Gasquet & CAS 2009/A/1930 World Anti-Doping Agency (WADA) v. ITF & Richard Gasquet
ITF 2009 ITF vs Richard Gasquet
July 15, 2009
SDRCC 2016 CCES vs Shawnacy Barber
August 11, 2016
Choice of law by the parties and ordre public
CAS full power of review “in order to do justice”
Meaning of the balance of probability test
No fault or negligence and principle of ne ultra petita
1. The application of the (rules of) law chosen by the parties has its confines in the ordre public. Usually, the term ordre public is thereby divested of its purely Swiss character and is understood in the sense of a universal, international or transnational sense. The ordre public proviso is meant to prevent a decision conflicting with basic legal or moral principles that apply supranationally. This, in turn, is to be assumed if the application of the rules of law agreed by the parties were to breach fundamental legal doctrines or were simply incompatible with the system of law and values
2. The concept of “in order to do justice” means that the Panel is a fortiori allowed to review the appealed decision if it is arbitrary, i.e. if it severely fails to consider fixed rules, a clear and undisputed legal principle or breaches a fundamental principle. A decision may be considered arbitrary also if it harms in a deplorable way a feeling of justice or of fairness or if it is based on improper considerations or lacks a plausible explanation of the connection between the facts found and the decision issued. In order to exercise such a review, the CAS must be able to examine the formal aspects of the appealed decisions but also, above all, to evaluate – sometimes even de novo – all facts and legal issues involved in the dispute.
3. In case the Panel is offered several alternative explanations for the ingestion of the prohibited substance but it is satisfied that one of them is more likely than not to have occurred, the Athlete is deemed to have met the required standard of proof regarding the means of ingestion of the prohibited substance. It remains irrelevant that there may also be other possibilities of ingestion, as long as they are considered by the Panel to be less likely to have occurred. In other words, for the Panel to be satisfied that a means of ingestion is demonstrated on a balance of probability simply means, in percentage terms, that it is satisfied that there is a 51% chance of it having occurred. The Athlete thus only needs to show that one specific way of ingestion is marginally more likely than not to have occurred.
4. Upon the finding that the Athlete acted with no fault or negligence, the Panel normally has to overrule the decision of the Tribunal imposing a period of ineligibility and to replace the challenged decision with the decision that no period of ineligibility should be imposed on the Athlete for his doping offence. However, the Panel is bound by the principle ne eat iudex ultra petita partium and is thus not in a position to grant the Athlete more than what he asked for, if the Athlete only asked for the appeals to be dismissed and did not express a request for the decision of the Tribunal to be overruled and set aside.
In April 2009 the International Tennis Federation (ITF) has reported an anti-doping rule violation against the Athlete Richard Gasquet after his A and B samples tested positive for the prohibited substance cocaine in a low concentration.
After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the ITF Independent Anti-Doping Tribunal.
The Athlete denied the intentional use of cocaine asserted that he tested positive for cocaine after he had kissed a woman in a club who had been ingesting cocaine prior to their rendezvous.
the Athlete argued that if there was a doping offence, the Athlete could establish “No Fault or Negligence” or alternatively “No Significant Fault or Negligence”. Further, he argued that there should be no period of ineligibility because the circumstances of the offence – accidental contamination in a social setting after the Athlete had decided to withdraw from the competition through injury - were such that any ban would be grossly disproportionate to the offence and therefore unlawful.
Also in June 2009 the Athlete filed a complaint with the French prosecuting authority, alleging against the woman that a harmful substance had been administered to him, contrary to the French penal code. A criminal complaint was, at some point in time, also filed by the woman against the athlete for defamation.
The French newspaper, Aujourd’hui, published an interview with the woman that reportedly took place the afternoon before, and in which she denied having either taken or been offered any cocaine during the evening of the rendezvous. However, she admitted having taken cocaine on previous occasions in her life. Furthermore, she asserted that she had kissed the Athlete only briefly and not mouth to mouth, and that she was willing to give evidence and undergo a hair test herself.
On September 2009, the public prosecutor’s department of Paris issued a communiqué stating that the proceedings initiated by the Athete on 4 June 2009 against the woman for administration of a harmful substance to him had been closed, as no criminal offence had been revealed. The communiqué furthermore noted that the toxicological examination carried out on “a young lady heard during this procedure” revealed that she regularly consumed cocaine, and that she would be subject to a therapeutic order from the public prosecutor’s department.
The ITF Tribunal Panel accepted that the Athlete has discharged the onus on him of establishing, on the balance of probability, how cocaine entered his system. The Panel noted that the most likely explanation is that advanced by the Athlete, namely that cocaine was transferred to the Athlete from mouth to mouth kissing with the woman. The Panel ruled that this explanation is more likely than not to be the correct one.
The Panel holded that in this case, the Athlete’s inadvertent ingestion of cocaine occurred in circumstances in which the degree of his fault was very small, as small as the miniscule quantity consumed.
On 15 July 2009 the ITF Tribunal decided to impose a 2 months and 15 days period of ineligibility on the Athlete for the time already served, starting on the date of the provisional suspension until the date of the decision. Also Athlete’s results in competitions in Barcelona and Rome during April 2009, should remain undisturbed and the prize money and ranking points obtained by the Athlete in those competitions should not be forfeited.
Hereafter in Autust 2009 the ITF and WADA appealed the decision of the ITF Independent Anti-Doping Tribunal of 15 July 2009 with the Court of Aribitration of Sport (CAS).
The ITF and WADA requested the Panel to annul the decision of the ITF Independent Anti-Doping Tribunal and to impose a period of ineligibility of not more than 2 years and not less than 1 year.
On a balance of probability, the CAS Panel concludes that it is more likely than not that the Athlete’s contamination with cocaine resulted from kissing the woman. Any other source is either less likely than the kissing to have resulted in the contamination, or is even entirely impossible. The Panel thus concludes that the Athete has met the required standard of proof, such as stipulated in Art. K.6.2 of the Programme and Art. 3.1 of the WADA Code, with regard to the way of ingestion.
Futher the Panel states that under the given circumstances, even if the Athlete exercised the utmost caution, he could not have been aware of the consequences of kissing a girl who he had met in a totally unsuspicious environment. It was simply impossible for the Athlete, even when exercising the utmost caution, to know that in kissing the woman, he could be contaminated with cocaine. The Athlete therefore acted without fault or negligence.
The Court of Arbitration for Sport decides on 17 december 2009:
1.) The appeal of the International Tennis Federation (ITF) against the decision of the Anti-Doping Tribunal convened under the ITF regulations dated 15 July 2009 regarding the tennis Athlete Richard Gasquet is dismissed.
2.) The appeal of the World Anti-Doping Agency (WADA) against the decision of the Anti-Doping Tribunal convened under the ITF regulations dated 15 July 2009 regarding the tennis Athlete Richard Gasquet is dismissed.
6.) All other motions or petitions for relief are dismissed.
Doping in de ongeorganiseerde sport (Dutch title)
/ Gezondheidsraad (Health Council of the Netherlands). - The Hague : Gezondheidsraad, 2010. - 150 p. . - (Advies Gezondheidsraad: 2010/03)
Health Council of the Netherlands. Doping in unorganised sports.
In recent years, reports from the former Netherlands Centre for Doping Issues (NeCeDo) and the subsequently founded Doping Authority showed that doping in sports is likely a growing problem in our country. Use of doping in sports is largely associated with professional sports. However, in addition to organised sports (at both professional and amateur levels), doping is supposed to be widespread in unorganised sports. The minister of Health, Welfare and Sport has asked the Health Council of the Netherlands to investigate the nature and severity of doping use in unorganised
sports, particularly with regard to the harmful effects on health, both short and long-term, the implications of high-risk drugs in terms of health risk, disease burden and care consumption, and to make recommendations regarding these topics. Additionally, the Council is asked to provide a vision statement on improving prevention of health damage based on current scientific insights.The request for advice defines doping in unorganised sports as improper use of authorised or unauthorised medicinal products with the objective of obtaining a muscular or slim physique. It indicates that the use of anabolic steroids and
stimulants by gyms and fitness centre attendees in particular is worrying.
Klanttevredenheidsonderzoek Doping Infolijn : een enquête onder bellers en e-mailers plus trends van 2000-2007 / A. Palsma. - Capelle aan den IJssel : Dopingautoriteit, 2008
In 2000, a telephone information line for questions concerning doping was started: the Doping Informatielijn, abbreviated as DIL. In the first place this telephone service was intended for athletes in gyms, but in the course of the time other target groups within the sport were more and more reached. Since 2006 also the question and answers and context data of e-mailers have been registered. Because the DIL is ISO certified substantive appointments have been fixed about the quality of the settlement of guarantees for the information requests, the recording of the context data of the users of the telephone information line and mailers and intervision of question and answers by the DIL-operators. One of the quality requirements is that the information seekers appreciate the DIL with a report figure of at least seven (on a scale of ten). Until now it had never been examined if this quality requirement was obtained. Therefore a customer satisfaction investigation has been conducted in the period of 1 August 2007 up to and including 1 February 2008 under all information seekers (by phone and e-mail) who have approached the DIL during this period. The recent developments over the period of 2000 up to and including 2007 were also examined. It was also investigated if and which data are available of other doping information lines. The DIL is telephonically contactable on working days from 13.00 till 16.00 by phone 0900-200 1000 or by mail: firstname.lastname@example.org.
For the customer satisfaction research under users of the telephone line and e-mailers, questionnaires have been placed on internet which could be filled in online. 222 of the 305 users of the telephone line were asked to participate and 65 have eventually filled in the questionnaire. Also 222 of 278 e-mailers have been asked to participate in the study and 68 persons have filled in the questionnaire. The recent developments have been examined using the statistic data of the previous years which have been stored in the access files of the automated recording system. Comparison of data of the participants to the customer satisfaction research with those of mailers and users of the telephone line over the year 2007 learns that the customer satisfactory research is representative for the information seekers which used the e-mail and the telephone service of the DIL.
The users of the telephone line are very satisfied and give an average report figure of 8.1 (spacing 6 - 10). However, 22% of the users of the telephone line noticed that extension of the visiting hours is needed. The users of the telephone line noticed that the mail service must be mentioned more prominent at the websites. The mailers are also very satisfied concerning the DIL and give to an average mark of 8.2 (spacing 7.5 - 10). However, 9% of them find the answer unclear.
From the recent developments it becomes clear that the number of female information seekers increases. The most questions are asked by people in the age categories of 21 up to 25 years, followed by 16 up to 20 years, 26 up to 30 years and 31 to 35 years. Parents do ask more often questions at the DIL, what can explain the increase of the number of information seekers in the age category of 41 up to 50 years. At other information lines it is also noticed that the number of mailers seems to increase.
The age of the users of the Anti-Doping Hotline in Sweden is lower than that of the information seekers of the DIL. As well as in the Netherlands the use of anabolic steroids here too is the most important conversation topic.
Information seekers of the DIL can also contact employees direct outside the opening hours of the DIL telephone and by mail. These question and answers generally are not registered. As a result of this research it is inventoried or and how the quality assurance of the questions which are settled outside the DIL can be realised. Extending opening hours of the DIL runs up against practical objections. For this reason the e-mail service is promoted more, so that information seekers know more about this possibility to get their question answered rapidly. Answering the e-mails will be improved by establishing a guide for this. Current quality is further maintained.