CAS 2005_A_964 WADA vs Gabriel Sorin Pop

27 Feb 2006

TAS 2005/A/964 Agence mondiale antidopage c. Gabriel Sorin Pop
CAS 2005/A/964 WADA vs Gabriel Sorin Pop

Facts
The World Anti-Doping appeals against the decision, dated July 25, 2005, of the Romanian federation of cycling and triathlon (Fédération roumaine de cyclisme et de triathlon, FRCT) in the case of Gabriel Sorin Pop, the cylist, the sanction was a warning.
The cyclist participated on April 2005 in the cycling Tour of Greece. April 22, 2005, he was selected to undergo a doping control, as reserve rider in accordance with Article 122 of the anti-doping rules of the International Cycling Union (hereinafter, respectively AER and UCI).
At the expiration of the time allowed for the rider to undergo a doping control, his absence of presentation thereof, the controller has established a record of deficiency against Mr. Gabriel Sorin Pop, this report was sent to the UCI.

History
The cyclist had explained that his team captain and the rest of the team didn't understand the English language they missed the announcement on the radio and they didn't received a written notification. Also there was a problem because of a detour to the hotel and the location of the doping control post. However one cyclist of the team was tested and the results where negative.

Decision
1.) The appeal is sustained.
2.) The decision of the FRCT is cancelled.
3.) The sanction is a period of ineligibility of two years for the whole competition valid from the date of notification.
4.) All the results of the cyclist after 22 of April are cancelled, medals points and prized are withdrawn.
5.) An administration fee of CHF 500,-. has to be paid by the appellant.
6. Each party bears his own costs.

CAS 2005_A_884 Tyler Hamilton vs USADA & UCI

10 Feb 2006

CAS 2005/A/884 Tyler Hamilton v. United States Anti-Doping Agency (USADA) & Union Cycliste Internationale (UCI)

Related cases:
- AAA No. 30 190 00130 05 USADA vs Tyler Hamilton - Awards & Dissenting Opinion
April 18, 2005
- Affidavit Tyler Hamilton [USADA vs Lance Armstrong October 10, 2012]
September 22, 2011
- CAS 2004_A_748 ROC & Viatcheslav Ekimov vs IOC, USOC & Tyler Hamilton
June 27, 2006
- IOC 2012 IOC vs Tyler Hamilton
August 10, 2012

Cycling
Doping (homologous blood transfusion, HBT)
Proof by “any reliable means”
Shifting of the burden of proof when a laboratory is not accredited for a particular test
Reliability of the HBT test
Starting date of the sanction

1. The proof of an anti-doping violation “by any reliable means” gives great leeway to anti-doping agencies to prove violations, so long as they can comfortably satisfy a tribunal that the means of proof is reliable. As a result, it is not even necessary that a violation be proven by a scientific test itself. Instead, a violation may be proved through admissions, testimony of witnesses, or other documentation evidencing a violation. As a consequence, WADA need not designate a specific test to prove that a doping violation has occurred. Rather, WADA and its accredited laboratories are free to develop tests based on appropriate scientific principles to demonstrate the existence of a prohibited substance or the use of a prohibited method. This flexibility necessarily provides WADA and other anti-doping organizations with the means to combat new forms of doping.

2. Anti-doping organisations are generally aided by the presumption that WADA-accredited laboratories are presumed to conduct sample analysis in accordance with international laboratory standards. However, when WADA has not specifically accredited the laboratory for a particular test, the burden shifts to the anti-doping organisation to prove that the test has been conducted in accordance with the scientific community’s practice and procedures and that the laboratory satisfied itself as the validity of the method before using it. If the particular test is valid, then the presumption returns and the athlete must then prove by a preponderance of the evidence that the testing was not conducted in accordance with international standards.

3. As the HBT test has been used for many years for important medical purposes and has been scientifically reliable, the methodology to be applied for testing of athletes has been published in peer reviewed articles which were deemed to provide “proof of principle”, and the test methodology has been validated and considered as fit for purpose according to ISO 17025 and WADA ISL, the HBT test must be considered as a valid and reliable test for determining the usage of the prohibited method of blood doping through homologous blood transfusion.

4. Delays in the completion of the proceeding constitute a reason of fairness to start the period of ineligibility at an earlier date than the date of the hearing decision, for example at the date of the voluntary acceptance by the athlete of his suspension from his team.


On 18 April 2005 the American Arbitration Association (AAA) Panel decided to impose a 2 year period of ineligibility on the cyclist Tyler Hamilton for the presence of transfused blood in his A and B blood samples which he provided in September 2004 in the Vuelta de España.

Hereafter in May 2005 the Athlete appealed the AAA decision with the Court of Arbitration for Sport (CAS).
The Athlete asserted that regarding the used test the validation studies of this brand new test were limited, incomplete and unsatisfactory. He also contested the reliability of the alleged positive findings in connection with the Vuelta sample.

The Panel considered the evidence and arguments in this case and finds that the HBT test as applied to the Athlete’s Vuelta sample was reliable, that on 11 September 2004, his blood did contain two different red blood cell populations, and that such presence was caused by blood doping by homologous blood transfusion, a Prohibited Method under the UCI Rules. In these circumstances the Panel finds that it is not necessary to consider USADA’s and UCI’s alternative submission based on the results of the other testing of the Athlete which was said to corroborate the accuracy of the Vuelta analysis.

The Panel also has given serious consideration to the history of the requests and production of documents both before the current appeal Panel and before the original AAA hearing and whilst there may be some concerns about the way in which documents have been produced the Panel finds that there was no concealment such as would cast doubt on the validity of the test.

the Panel concludes that the presence of a mixed blood population in the Athlete’s Vuelta sample as detected by the HBT test proves that the Athlete was engaged in blood doping, a Prohibited Method, that violated the UCI Anti-Doping Rules; Chapter II, article 15.2 and Chapter III, article 21.

Therefore the Court of Arbitration for Sport decides on 10 February 2006:

1.) The appeal filed by Mr Tyler Hamilton against the award dated 18 April 2005 rendered by the AAA Panel is dismissed.
2.) Mr Tyler Hamilton is ineligible to compete in cycling races for two years from 23 September 2004 until 22 September 2006.
3.) All questions of costs are reserved for consideration and will be the subject of a separate award.

CAS 2004_A_726 Maria Luisa Calle Williams vs IOC

19 Oct 2005

CAS 2004/A/726 Maria Luisa Calle Williams v. International Olympic Committee (IOC)
CAS 2005/A/726 Maria Luisa Calle Williams v/IOC

Track cycling
Doping (Isometheptene)
CAS jurisdiction
Substance with “a similar chemical structure or similar pharmacological effects” to the substances listed as prohibited
Criteria to be considered when deciding to treat a substance as similar to a listed substance

1. In contrast to a decision to include a particular substance on the Prohibited List, a WADA determination to treat a substance as “similar” to a listed substance can be challenged by athletes.

2. The classification of a substance as having “a similar chemical structure or similar pharmacological effect(s)” requires a similarity to one or several of the particular substances on the list. It is not sufficient for WADA or the IOC, or any other anti-doping agency, simply to assert that a substance, such as Isometheptene, is “a stimulant” and thus a prohibited substance (when that assertion is disputed by an athlete) without specifying the particular substance on the List with which similarity is supposed to exist.

3. Before treating a substance as similar, the three criteria mentioned in 4.3 of the WADA Code (potential performance enhancement, health risk, violation of the spirit of sport) must be considered. Only if two of these three are met can a substance be treated as similar and thus prohibited.


Ms Maria Luisa Calle Williams is a Colombian Athlete competing in the Women’s point race for track cycling at the 2004 Athens Olympic Games.

On 29 August 2004 the International Olympic Committee (IOC) decided to disqualify the Athlete after her A and B samples tested positive for the prohibited substance Heptaminol.
Here the Athlete stated that she had used the prescribed medication Neo-Saldina containing Isometheptene as treatment for a migraine headache.

Hereafter in October 2004 the Athlete appealed the IOC decision with the Court of Arbitration for Sport (CAS).

In this case during the proceedings with CAS the parties accepted the findings en conclusion of an expert report:
- that both Heptaminol and Isometheptene, even though not expressly listed in WADA’s Prohibited List, have a “similar chemical structure or similar pharmacological effect(s)” as those substances expressly named as “S.1-stimulants” in the WADA Prohibited List; and
- that both Heptaminol and Isometheptene are prohibited substances pursuant to the IOC Rules; and
- that Heptaminol is a marker for Isometheptene, i.e. “a compound, group of compounds or biological parameters that indicates the use of a prohibited substance or prohibited method”.

Subsequent UCI and the Lausanne Lab also concluded that the substance Isometheptene has not a similar chemical structure or pharmacological effect as the stimulants listed on the WADA 2004 list and can thus not be considered to be prohibited under IOC Rules. The parties in this case, including WADA, agreed that the presence of Heptaminol in the Athlete’s sample was not due to she ingested that substance but the result of metabolizing Isometheptene into Desmethyl-Isometheptene which transformed in Heptaminol during laboratory analysis.

Initially, the IOC Decision argued that as a result of the strict liability principle the mere finding of Heptaminol - which the IOC claims was a prohibited substance at the relevant point in time - in the Athlete’s sample must lead to her disqualification. However, during the proceedings before the Panel the IOC agreed that contrary to its original submissions the substance for which the Athlete tested positive was Isometheptene not Heptaminol. This was the result of the her’s admission to having taken Neo-Saldina and the biological and chemical process. Therefore, the Panel does not have to determine whether Heptaminol is in fact a prohibited substance.

The Panel is unanimously of the view that the classification of a substance as having “a similar chemical structure or similar pharmacological effect(s)” requires a similarity to one or several of the particular substances on the list. It is not sufficient for WADA or the IOC, or any other anti-doping agency, simply to assert that a substance, such as Isometheptene, is “a stimulant” and thus a prohibited substance (when that assertion is disputed by an athlete) without specifying the particular substance on the List with which similarity is supposed to exist.

In summary, the Panel is unanimous in finding:
- that a decision by WADA to treat a substance as “similar” is subject to challenge;
- that the S1-Stimulants category of the 2004 Prohibited List is not an “open list” and that similarity must exist with a particular substance before a non-listed substance can be treated as similar; and
- that before treating a substance as similar the three criteria mentioned in 4.3 of the WADA Code must be considered.

Further, the majority of the Panel finds that the IOC failed to discharge the burden of proving that Isometheptene is a prohibited substance under the applicable rules.

Therefore the Court of Arbitration for Sport decides on 19 October 2015:

1.) The decision of the IOC of 29 August 2004 is set aside.
2.) The award to Maria Luisa Calle Williams of the bronze medal for the women’s Point race at the 2004 Olympic Games is confirmed.
(…)

CAS 2004_A_777 ARcycling AR (Phonak) vs UCI

31 Jan 2005

CAS 2004/A/777 ARcycling AG v/UCI
CAS 2004/A/777 ARcycling AG v. Union Cycliste Internationale (UCI)

Cycling
UCI Pro Tour
Violations of procedural rights with a critical bearing on the outcome of the case
Annulment of the decision issued by the UCI Licence Commission
Denial of UCI Pro Tour licence unjustified

1. The fact not to respect one party’s rights to be heard and to obtain a fair proceeding before the adoption of the negative Preliminary Opinion constitutes a breach of the fundamental due process rights. However, according to the constant jurisprudence of the CAS, a procedural violation is not enough in and by itself to set aside an appealed decision; it must be ascertained that the procedural violation had a bearing on the outcome of the case. Whenever a procedural defect or unfairness in the internal procedure of a sporting body can be cured through the due process accorded by the CAS, and the appealed decision’s ruling on the merits is the correct one, CAS panels has no hesitation in confirming the appealed decision.

2. The procedural defects of the licensing procedure have however a critical bearing on the outcome of the same procedure if the involved party could for example have proven that it had organised its team in such a way as to combat doping effectively, thus avoiding the negative judgment on this issue before the Preliminary Opinion. The violations of one party’s fundamental procedural rights yield a ruling that is materially ungrounded and evidently unjustified.

3. The granting of a UCI ProTour Licence for a limited period of two years is proportionate taking into account the measures taken by the involved party to combat doping which will give the opportunity this party to demonstrate, as far as required, that there was in fact no connection between its riders’ high blood values and adverse analytical findings and its internal organisation, and to confirm that the team can reach the level of excellence necessary for the UCI ProTour.


ARcycling AG (the Appellant) is a Swiss limited company, having its seat in Hombrechtikon, Switzerland, the purpose of which is to operate professional cycling teams. The Appellant’s cycling team is sponsored by and named after the company Phonak Hearing Systems (the Phonak team).

In 2004 after blood tests riders of the Phonak team had average higher blood values for haematocrit and reticulicytes. The rider Oscar Camenzind tested positive for EPO and the rider Santiago Perez tested positive for blood transfusions. The rider Tyler Hamilton tested positive for blood transfusions and also his samples collected at the 2004 Olympic Games tested positive. ARcycling terminated the contracts with the riders Tyler Hamilton and Santiago Perez.

As a result of the doping cases in the Phonak team, the UCI Licence Commission in its final decision dated 22 November 2004 rejected the ARcycling's application for a UCI ProTour Licence. Hereafter in December 2004 ARcycling's appealed the UCI rejection with the Court of Arbitration for Sport (CAS).

After hearing the positions of the parties, the CAS Panel finds that the granting of a UCI ProTour Licence for a period of two years is proportionate. Such measure will give the opportunity to the ARcycling to demonstrate, as far as required, that there was in fact no connection between its riders’ high blood values and adverse analytical findings and its internal organisation, and to confirm that the team can reach the level of excellence necessary for the UCI ProTour.

In any event, the Regulations allow the Licence Commission to withdraw the ProTour licence at any moment should the team no longer comply with the conditions set out by art. 2.15.040.114.
For those reasons, the Panel accepts the ARcycling’s application and, considering in particular some events of the year 2004 in light of the criterion no. 8 of art. 2.15.011 of the Regulations, holds that the granting of a UCI ProTour licence for two years is appropriate.

Therefore the Court of Arbitration for Sport decides on 31 January 2005 that:

1.) The appeal filed by ARcycling AG on 15 December 2004 is upheld.
2.) The appealed decision issued on 22 November 2004 by the Licence Commission of the Union Cycliste Internationale is set aside.
3.) The application of ARcycling AG for the obtainment of a UCI ProTour Licence for the Phonak Hearing System team is accepted, and a UCI ProTour Licence is granted to it for a period of two years, namely for the cycling seasons 2005 and 2006.
4.) All other motions or prayers for relief are dismissed.
5.) (…)

CAS 2004_A_769 Franck Bouyer vs WADA & UCI

18 Mar 2005

TAS 2004/A/769 Franck Bouyer c/UCI & AMA
CAS 2004/A/769 Franck Bouyer vs WADA & UCI

Facts
Franck Bouyer, the athlete, appeals against the decisions of the therapeutic use exemption (TUE) committees of the International Cycling Union, dated September 8, 2004, and of the World Anti-Doping Agency (WADA), dated October 26, 2004.

History
Respondent used Modafinil, because he is narcoleptic, resulting in sudden sleep attacks and catalepsy, and was unable to compete or train without Modafinil.
The Panel finds that the burden lay upon the athlete to show that he was entitled to the TUE. New factual evidence was not admissible before CAS. There is no proof that the prohibited substance did not improve his performance or which amount he has taken to have a normal health.

Decision
1. The appeal of the athlete was rejected.
2. The decision of the UCI of September 8, 2004, is upheld.
3. The athlete has to pay the administration fee of CHF 500,-. to the CAS.
4. Each party bears its own cost.
5. Any other or further parts of the conclucions of the parties are rejected.

CAS 2004_A_748 ROC & Viatcheslav Ekimov vs IOC, USOC & Tyler Hamilton

27 Jun 2006

CAS 2004/A/748 Russian Olympic Committee (ROC) & Viatcheslav Ekimov v. International Olympic Committee (IOC), United States Olympic Committee (USOC) & Tyler Hamilton

Cycling
Characteristics features of a „decision‟
No anti-doping rule violation
Jurisdiction of the CAS
Standing to appeal

1. When a letter contains a clear statement of the resolution of the disciplinary procedure and when that statement has the additional effect of resolving the matter in respect of all interested parties it can be considered as a decision. It seems also evident from the text of the letter that its author intended such communication to be a decision issued on behalf of the IOC. The letter is therefore a true “decision” which can be appealed under Art. R47 of the Code.

2. The decision taken by the IOC whereby it is stated that a rider had not committed an anti-doping rule violation because the B sample did not confirm the A sample is tantamount to stating that the IOC determined that no anti-doping rule violation had been committed. Therefore, the said decision falls under Art. 12.2 of the IOC Anti-Doping Rules which allows the CAS to rule on appeals against a „decision that no anti-doping rule violation was committed‟ and the CAS has jurisdiction to review it.

3. Art. 12.2.2 of the IOC Anti-Doping Rules, corresponding to Art. 13.2.3 of the WADA Code, provides that only the following parties have the right to appeal to the CAS: “(a) the Athlete or other Person who is the subject of the decision being appealed; (b) the IOC; (c) the relevant International Federation and any other Anti-Doping Organisation under whose rules a sanction could have been imposed; and (d) WADA”. Neither a competitor (of the athlete subject to an anti-doping decision) nor his National Olympic Committee are among the individuals or organisations listed therein. This interpretation is confirmed by the Comment on the WADA Code – particularly relevant in light of Art. 16.5 of the IOC Anti-Doping Rules – which unambiguously states that such list of persons or organizations having standing to appeal “does not include Athletes, or their federations, who might benefit from having another competitor disqualified”. An application submitted to the CAS by a party having standing to appeal long after the time limit for the appeal had expired cannot be considered.


Mr. Tyler Hamilton is an American professional Athlete competing in the cycling Men's Individual Time Trial event and the Men's Road Race at the Athens 2004 Olympic Games.

Mr Viatcheslav Ekimov is a Russian professional Athlete competing 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 sample tested positive for blood doping. However the IOC Disciplinary Commission concluded on 23 September 2004 that no anti-doping rule violation was committed because the Athlete's B sample did not confirm the A sample.

Hereafter in October 2004 the Russian Olympic Committee (ROC) and the Athlete Viatcheslav Ekimov appealed the IOC Decision of 23 September 20014 with the Court of Arbitration for Sport (CAS).
The ROC and the Athlete requested the Panel to set aside the IOC decision and the disqualification of the Athlete Tyler Hamilton, including forfeiture of any medals, points and prizes won.
The Appellants contended that the new adverse analytical finding in respect of Mr Hamilton and the outcome of the related case would be relevant for the present procedure.

The Panel holds that the IOC Decision of 23 September 2004 falls under Art. 12.2 of the IOC Anti-Doping Rules and, thus, the CAS has jurisdiction to review it. However, a tribunal may have jurisdiction to decide a dispute, but it can only exercise that jurisdiction if the parties in front of it have standing to ask it to make the decision. Accordingly, the Panel must decide whether the Appellants are properly before it, i.e. whether they have locus standi to put the matter before the CAS under the IOC Anti-Doping Rules.

The Panel finds that both Appellants lack standing to appeal under Art. 12.2.2 of the IOC Anti-Doping Rules. As a result, the Panel may not entertain this appeal and must decline to adjudicate the case upon its merits.

On 27 June 2006 the Court of Arbitration for Sport decides:

1.) Mr Viatcheslav Ekimov and the Russian Olympic Committee have no standing to appeal against the decision issued on 23 September 2004 by the International Olympic Committee.
2.) The appeal filed by Mr Viatcheslav Ekimov and the Russian Olympic Committee on 14 October 2004 against the decision issued on 23 September 2004 by the International Olympic Committee is dismissed.
(…)

CAS 2004_A_707 David Millar vs The British Cycling Federation

17 Feb 2005

CAS 2004/A/707 Mr. David Millar v The British Cycling Federation

As a result of an investigation in 2004 against certain members of the COFIDIS cycling team for possible doping offences, the residence of the British cyclist David Millar in Biarritz was searched and two used syringes found there. In consequence on 22 June 2004, he was arrested and held in custody by the French police. While in custody he admitted to doping offences.

On 1 July 2004 the Athlete was charged with possessing and using toxic substances. During his hearing by the Examining Magistrate, the Athlete explained he had taken Testosterone patches on one occasion and EPO on three occasions.

The Athlete explained the pressure placed upon him by his position as team leader, the need he faced to "produce results", and at the same time the personal isolation in which he found himself, all of which exacerbated his psychological vulnerability. Those factors in combination with a heavy race programme, various injuries, disappointing results in certain important races and consequential financial pressures made him succumb to the temptation to use prohibited substances.

On 6 August 2004 in the decision issued by the British Cycling Federation (BCF) a 2 year period of ineligibility and a minimum fine was imposed on the Athlete.
In this case the BCF considered:
- the Athlete gave a frank admission both to the French authorities and the BCF;
- the fact that he voluntarily stopped using banned substance prior to any investigation;
- the genuine contribution shown;
- his willingness to assist young riders to help them avoid falling into the trap of taking banned substances;
- the gravity of the consequences of the penaly for his sporting and economic position and the risk to his professional career.

Hereafter in August 2004 the Athlete appealed the BCF decision with the Court of Arbitration for Sport (CAS). The Athlete accepted the fine and disqualification penalties and requested the Panel for a reduced sanction. The BCF argued that the imposed sanction was proportional and lenient while he deliberately had used doping and only admitted the offences after he was caught.

The Panel considers that when balancing all the relevant circumstances which come into play in deciding upon the length of the suspension, it is necessary to have regard to the indisputable fact that notwithstanding the Athlete’s sincere change of heart in autumn 2003, his doping offence was a very serious one.

Given the particular circumstances of this case - in which the Athlete was arrested by the French police and admitted, before his discharge from custody, to being guilty of doping, thereby de facto excluding himself from the Tour de France and any other forthcoming competitions, while at the same time promptly announcing he was withdrawing from the British Olympic team for Athens - the Panel considers the 2 year suspension should in fairness take effect from the date of his arrest.

Therefore the Court of Arbitration for Sport decides on 17 February 2005:

1.) The appeal filed by David Millar on 23 August 2004 is partially upheld.
2. The decision of 6 August 2004 issued by BCF is modified in accordance with paragraph 3.
3.) Millar’s two-year suspension from all forms of cycling competition is maintained, except that the said suspension takes effect on 24 June 2004 and ends on 23 June 2006.
4.) This award is rendered without costs, except for the Court Office fee of CHF 500.-- (five hundred Swiss Francs) already paid by the Appellant, which shall be retained by the CAS.
5.) Each party shall bear its own costs.

CAS 2004_A_651 Mark French vs Australian Sports Commission & Cycling Australia

30 May 2005

CAS 2004/A/651 Mark French vs Australian Sports Commission & Cycling Australia
- Appeal Partial Award
July 11, 2005
- Interlocutory Award
January 31, 2005
- Interlocutory Award
March 30, 2005

In December 2003 cleaners found in the guesthouse room previously occupied by the Australian cyclist Mark French a plastic bag of used syringes and needles in the cupboard and a bucket of the sort which normally contained protein powder, also containing used syringes and needles. This discovery was followed by an investigation conducted by the Australian Sports Commission (ASC) and Cycling Australia (CA).

As a result in February 2004 the ASC and the CA reported anti-doping rule violations against the Athlete for:
(1) Trafficking in a prohibited substance, namely Glucocorticosteroid;
(2) Trafficking in a prohibited substance, namely equine growth hormone (eGH);
(3) Knowingly assisting a doping offence, namely assisting in trafficking glucocorticosteroid by others; and,
(4) Knowingly assisting a doping offence, namely assisting in trafficking equine growth hormone by others.

In the matter of trafficking the substance Glucocorticosteroid and equine Growth Hormone (eGH) the Court of Arbitration for Sport (CAS) Oceania Registry decided on 8 June 2004 to impose a 2 year period of ineligibility on the Athlete and a A$ 1,000 fine. In the Final Arbitration Award the Athlete was further ordered to:
(1) return to the ASC a trek road bike;
(2) pay the ASC the sum of A$12,031.37 for the financial assistance they provided to the Athlete; and
(3) pay the sum of A$20,000 to the ASC towards the costs of their proceedings.

Hereafter in June 2004 the Athlete appealed the first instance decision of with CAS.

In this case the scope of the appeal became controversial between the parties. The Panel was unable to deal with that controversy until it was reconstituted in late January of 2005. The Panel issued two interlocutory rulings dated 31 January 2005 and 30 March 2005 in which the Panel interpreted the CAS Code and prescribed the scope of this appeal.

By the interlocutory rulings the ASC and CA were permitted to file a cross-appeal against the finding of the Arbitrator at first instance that the Athlete did not breach CA Anti-Doping Policy by committing a Doping offence by using eGH. The finding was that the particular was not proven or accepted. The cross-appeal of the ASC and CA relates to this single particular.
Through the interlocutory rulings, all parties were able to file new evidence before the Panel in the rehearing and cross-appeal that had not been called at the first instance. The Athlete and the ASC and CA both filed extensive new evidence before the Panel.

The Athlete admitted to injecting himself with vitamins, supplements and the product Testicomp but denied injecting eGH. He admitted to injecting these substances in the company of other athletes but testified and stated that he was unaware of any athlete, who was present with him injecting eGH.

The Panel finds that this Athlete’s admission of Testicomp does not amount to an admission that there has been use of a prohibitied substance due to the product Testicomp was tested negative for the presence of a prohibited substance. As a result the Panel can’t find that a breach of the CA Anti-Doping Policy has occurred and that all allegations in the matter of Testicomp are dismissed as not established.

The Panel concludes that the scientific evidence does not demonstrate to the necessary degree of satisfaction the Athlete’s use of eGH and thereby breached the CA Anti-Doping Policy.
In the matter of trafficking eGH the Panel holds that the evidence in this case establish, unlike to the substance Testicomp, that there is evidence that the phials found in the bucket contained a prohibited substance, i.e. eGH, and it is being undisputed that the substance is a prohibited substance under the CA and UCI Anti-Doping Rules.

Further the Panel finds that not has been established that the requisite significant degree of satisfaction of proof that the Athlete knew he was in possession of eGH. In the absence of that knowledge the allegation of trafficking in eGH cannot be upheld nor the allegations for aiding & abetting. Finally the Panel is unable to uphold the conclusions of the Arbitrator in first instance.

Therefore the Court of Arbitration for Sport decides on 11 July 2005 that:

1.) The decision of Arbitrator Holmes QC at first instance be set aside and replaced with this decision of the Appeal Panel. As a consequence the two year period of ineligibility imposed as a sanction is terminated immediately. As a further consequence the fine of A$1,000 Australian dollars ordered to be paid at first instance is to be returned to French within one week of the date herein.
2.) The first instance order to return the trek bike and A$12,031.37 by way of an athlete scholarship are to be included in the written submission referred to in order number four below.
3.) This being an appeal procedure this award is public under CAS Rule 59 unless the parties agree otherwise; and
4.) Costs associated with the first instance decision; the interlocutory proceedings; and this appeal by rehearing and cross-appeal will be considered but on the principles of CAS international and the CAS Rule 65. Counsel are directed to make a written submission not exceeding 10 pages double spaced as to their costs and the matters referred to in order number two above within 15 days of this award.
5.) The Court office filing fees paid by the ASC and by CA at first instance and the filing fee paid by the Appellant French each in the amount of A$500 are retained by CAS.

CAS 2008_A_1470 WADA vs FILA & Mohamed Ibrahim Abdelfattah

3 Sep 2008

CAS 2008/A/1470 World Anti-Doping Agency (WADA) v. Fédération Internationale des Luttes Associées (FILA) & Mohamed Ibrahim Abdelfattah

Related case:
CAS 2007_A_1365 WADA vs FILA & Mohamed Ibrahim Abdelfattah
December 11, 2007

Wrestling
Doping (refusal to submit to an out of competition doping control)
Identification of the entities entitled to conduct out-of-competition testing
Standard of proof under Swiss law
Absence of departure from the applicable standards

1. Based upon the applicable rules of the relevant international federation, WADA as well as the national anti-doping organization of any country where an athlete is present is authorized to conduct out-of-competition testing on any athlete affiliated to the international federation.

2. Swiss law allows for a wide variety of methods of proof, ranging from a magistrate’s deductions from presumptions and evidence to direct proof such as written documents, witness statements, confessions, evidence of facts, experts, etc. It is on the basis of the evidence before them that the members of a CAS panel, in full discretion, must come to an opinion – their firm conviction (“intime conviction”) – as to facts established. A CAS panel may consider any evidence, even circumstantial evidence. Therefore, based on objective criteria, a panel must be convinced of the occurrence of an alleged fact. However, no absolute assurance is required; it suffices that the tribunal has no serious doubts on a specific fact or that the remaining doubts appear to be light. Those methods of proof are applicable for the evaluation by a CAS panel of an athlete’s actual command of the English language. Accordingly, a panel can consider than an athlete was able to understand the statements that were being made to him in English and to answer and to ask questions such that the sample-collection session could take place in a fair manner and that no interpreter was needed.

3. The requirements included in the applicable regulations regarding notification process, identification requirements, sample collection process, information about rights and duties and planning obligations are fully complied with when, based on the facts and evidence submitted by the parties, (i) the alleged deviations by the doping control officer from the anti-doping rules and the International Standard for Testing are not proven and (ii) the panel is convinced beyond reasonable doubt that the doping control officer correctly identified himself to the athlete who was informed of and understood his/her rights and obligations.


In July 2007 the World Anti-Doping Agency (WADA) reported an anti-doping rule violation against the Egyptian wrestler Mohamed Ibrahim Abdelfattah after he refused to provide a sample out-of-competition to USADA agents acting as representative of WADA. However the International Federation of Associated Wrestling Styles (FILA) decided on 31 July 2007 to impose a warning on the Athlete for his anti-doping violation.

WADA appealed this decision with the Court of Arbitration for Sport (CAS) and on 11 December 2007 (CAS 2007/A/1365) the Panel decided to annul the Appealed Decision and it referred the case back to FILA.

During the CAS proceedings a set of FILA disciplinary decisions were rendered between July 2007 and September 2007 including the imposition on the Athlete of a 6 months sanction on 28 September 2007.

As a result of the CAS decision op 11 December 2007 (CAS 2007/A/1365) the Athlete's case was referred back to FILA and on 19 December 2007 the FILA Federal Appeal Commission decided to confirm the previous sanction imposed on 28 September 2007.

Hereafter WADA filed a new appeal with CAS against the confirmed FILA sanction of 6 months. WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

WADA contended that the USADA agents had the authority to conduct the out-of-competition testing on the Athlete. He was duly informed of his rights and and obligations as well as of the consequences of a refusal to submit to doping control. WADA asserted that the Athlete’s allegations are in contradiction with the statements made by the USADA agents. Here the Athlete alleged that departures from the Rules and the IST occurred and that serveral of his personal rights were violated, notably because of his lack of ability in English.

The Panel establish that USADA had the authority to conduct the out-of-competition sample collection on the Athlete and that no departure from the applicable regulations occurred during the notification process. The Panel finds beyond any doubt that the Athlete’s level of English must have been sufficient to permit him to understand the statements that were being made to him in English.

The Panel concludes that the Athlete committed an anti-doping rule violation and he failed to establish that he bears No Significant Fault or Negligence in this case.

Therefore on 3 September 2008 the Court of Arbitration for Sport decides:

1.) The Appeal of the WADA against the decision rendered on 19 December 2007 by the FILA Federal Appeal Commission is admissible.
2.) The decision rendered on 19 December 2007 by the FILA Federal Appeal Commission is set aside.
3.) Mr Mohamed Ibrahim Abdelfattah is declared ineligible for a period of 24 months running from 18 June 2008, less a period of 6 months which has already been served by the athlete.
4.) All results achieved between 24 January 2008 and 17 June 2008 are disqualified and any medals, points and prizes obtained during such period are forfeited.
5.) This award is pronounced without cost, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) already paid and to be retained by the CAS.
6.) All other motions or prayers for relief are dismissed.

CAS 2007_A_1365 WADA vs FILA & Mohamed Ibrahim Abdelfattah

11 Dec 2007

CAS 2007/A/1365 WADA v/FILA & Mohamed Ibrahim Abdelfattah

Related case:
CAS 2008_A_1470 WADA vs FILA & Mohamed Ibrahim Abdelfattah
September 3, 2008

In July 2007 the World Anti-Doping Agency (WADA) reported an anti-doping rule violation against the Egyptian wrestler Mohamed Ibrahim Abdelfattah after he refused to provide a sample to USADA agents acting as representative of WADA. However the International Federation of Associated Wrestling Styles (FILA) decided on 31 July 2007 to impose a warning on the Athlete for his refusal.

Hereafter in August 2007 the World Anti-Doping Agency (WADA) appealed the decision of FILA with the Court of Arbitration for Sport (CAS). Also in this case a number of FILA disciplinary decisions followed between July 2007 and September 2007 regarding the Athlete’s provisional suspension and the imposition of a 6 months sanction.

WADA requested the CAS Panel to set aside the FILA decision of 31 July 2007 and to impose a 2 year period of ineligibility on the Athlete.

The Panel establish that the Appealed Decision was a ‘final’ decision and that the appeal filed by WADA was admissible. The Panel finds that the Appealed Decision was adopted by a FILA body - the Executive Committee - which clearly did not hold the power and competence to adopt such a disciplinary decision. Accordingly, the Panel holds the Appealed Decision to be null and void.

The Panel determines to refer the case back to FILA, so that the FILA Federal Appeal Commission may adopt a final disciplinary decision with regard to the Athlete's case. Thereafter, any dissatisfied party will still have the right to appeal before the CAS.

Therefore the Court of Arbitration for Sport decides on 11 December 2007 that:

1.) The Appeal of WADA against the FILA Executive Committee's decision of 31 July 2007 is admissible.
2.) The FILA Executive Committee's decision of 31 July 2007 is set aside.
3.) The case of Mr Mohammed Ibrahim Abdelfattah is referred back to FILA, so that the FILA Federal Appeal Commission may render its decision within the currently pending appellate procedure.
4.) The award is pronounced without costs, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) already paid by WADA and to be retained by the CAS.
5.) FILA shall pay an amount of CHF 1'500 (one thousand five hundred Swiss Francs) to WADA as a contribution towards its costs.

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