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.

CAS 2009_A_1915 WADA vs Zieziulewicz & Blonski & Polish Wrestling Federation

12 Aug 2010

CAS 2009/A/1915 World Anti-Doping Agency (WADA) v. Polish Wrestling Federation (PWF), Kamil Blonski & Wojciech Zieziulewicz

Wrestling
Doping (methyltestosterone)
Applicability of the WADA Code
No significant fault or negligence and principle of proportionality
High standard of athletes’ responsibility for nutritional supplements
Investigation required before the consumption of a nutritional supplement
Duty of care required for no significant fault or negligence

1. In accordance with Article R58 of the Code the “applicable regulations” refer to the statutes and regulations of the International Federations (IFs) which must be incorporated by the National Federations (NFs). As a signatory of the WADA Code (WADC), IFs incorporate the WADC into their Constitution and Anti-Doping Rules (ADR). Through this channel only, the WADC may apply. The rules of NFs are applicable to the extent that they do not conflict with the rules of IFs.

2. The proportionality principle which had been applied by CAS panels as a general legal principle in its earlier jurisprudence has been codified in Article 10.5 of the WADC 2003 allowing a sanctioning authority to consider exceptional circumstances of the case in order to lower the sanction instead of imposing a fixed sanction. Through the WADC 2003 the principle of proportionality was codified and thereby adjusted to the needs of the anti-doping law. The codification is in line with the requirements of the general proportionality principle and human rights. CAS has stated at various occasions that the WADC “enables the Panel to satisfy the general principle of proportionality” and there is no room to apply the proportionality principle beyond the application of Article 10.5.2 WADC 2003.

3. As it is generally known, nutritional supplements are often contaminated with or contain prohibited substances which are not declared on the label or package. The high standard of responsibility has been specified by warnings issued by the sport organizations. In practicing sport the athletes are bound by the provisions of their IF including its ADR and the high duty of care requested therein. This is a severe professional duty of care which is not incumbent on normal citizens and goes far beyond the standards of duty applicable to normal people.

4. Against the background of the content of the manufacturer’s website and the leaflet of the product, further investigation is mandatory before the consumption of a nutritional supplement. A check of the announcements in the internet and the product label, its package or leaflet is not sufficient. Even if the website and leaflet do not indicate prohibited substances openly, it is common knowledge that food supplements often contain undeclared substances or are contaminated with prohibited substances. Therefore, it is part of the athletes’ responsibility not to trust publicity on the website or the content of the label or leaflet.

5. By simply trusting the club personnel in what nutritional supplements they are given and the oral information provided by the support personnel that the products are clean, the athletes do not exercise the duty of care which is required in order to bear no significant fault or negligence only. Even if it is accepted that the athletes are misled by the club personnel and the seller and distributor of the supplements which are in close economic relation with the club, they are not relieved from their personal responsibility to make sure that no prohibited substance enters their bodies. Athletes do not escape liability when they simply trust their club’s staff or other supporting personnel.


On 15 May 2009 the Polish Wrestling Federation (PWF) decided to impose a 1 year period of ineligibility on the Polish wrestlers Kamil Blonski and Wojciech Zieziulewics after their A and B samples tested positive for the prohibited substance Methyltestosterone. When appealed by the World Anti-Doping Agency (WADA) the decision was uphold by the PWF on 29 June 2009.

Hereafter in July 2009 WADA appealed the PWF decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the decision of 29 June 2009 an to impose a 2 year period of ineligibility on the Athletes.

WADA rejected the arguments in favour of the Athletes and argued that the Fault or Negligence of the Athletes was significant for using a product that clearly indicated that it enhance performances.
The PWF contended that the Athletes established how the prohibited substance entered their system and that their degree of fault was normal without intention to enhance their sport performance. The Athletes used the product to gain weight and they did not conceal the use of the product.

Considering the evidence in this case the Panel concludes that the Athletes could not demonstrate No Significant Fault or Negligence due to they failed to conduct a thorough investigation of the product in question before using it.

Therefore on 12 August 2010 the Court of Arbitration for Sport decides:

1.) Tho appeal of WADA is declared admissible and upheld.
2.) The decision of the Disciplinary Arbitration Commission of the PWF adopted on 29 June 2009 is set aside.
3.) Mr. Kamil Blonski and Mr. Wojciech Zieziulewics are sanctioned with a two year period of ineligibility starting on the date of this Award. The period of provisional suspension served by Mr. Kamil Blonski and Mr. Wojciech Zieziulewics since 17 December 2008, i.e.,one year, seven montht and 26 days, shall be credited against the total period of two years.
4.) All competitive results obtained by Mr. Kamil Blonski and Mr. Wojciech Zieziulewics from 17 December 2008 through the commencement of the applicable period of ineligibility shall be disqualified with all resulting consequences, including forfeiture of any medals, points and prizes.
5.) This Award is pronounces without costs except for the non-reimbursable Court Office Fee of CHF 500,- allready paid and to be retained by the CAS, The parties bear their own legal and other costs. PWF is ordered to contribute CHF 3.000,- to the costs incurred by WADA.
6.) All other prayers for relief are dismissed.

CAS 2007_A_1399 WADA vs FILA & Maria Stadnyk

17 Jul 2008

CAS 2007/A/1399 World Anti-Doping Agency (WADA) v. International Federation of Associated Wrestling Styles (FILA) & Maria Stadnyk

Related case:
Swiss Federal Court 4A_416_2008 Maria Stadnyk & Azerbaijan Wrestling Federation vs WADA & FILA
March 17, 2009

Wrestling
Doping (furosemide)
WADA’s obligations with respect to decisions taken by associations and federations
CAS power of review
Precondition to the defence of No Significant Fault or Negligence
Sanction in case of delays in the process not attributable to the athlete

1. There is no obligation for WADA to inform itself on an ongoing basis about decisions that are going to be taken by associations and federations. Rather, federations, such as FILA, obligate themselves to report on compliance with the World Anti-Doping Code in order to keep WADA updated (according to Article 17 of FILA Anti-Doping Regulations). It cannot possibly be expected of WADA to monitor the web sites of sport associations in order to find out whether any sanctions have been suspended. As a matter of practice, it is also often impossible for WADA to monitor such decision-making processes as these proceedings and decisions are not necessarily displayed on websites.

2. According to Article 57 of the CAS Rules, a CAS panel is entitled to review the case de novo and the athlete’s rights are preserved notwithstanding how the earlier decision-making process took place within the first instance.

3. Establishing how a prohibited substance entered an athlete’s system is a fundamental precondition to the defence of “no significant fault or negligence” under the applicable rules.

4. According to the applicable Anti-Doping Regulations, delays in the hearing process or other aspects of Doping Control not attributable to the athlete, the federation concerned or the Anti-Doping Organization imposing the sanction may start the period of ineligibility at an earlier date commencing as early as the date of sample collection. Fairness does require that the period of ineligibility starts earlier if – for reasons beyond the athlete’s control, notably linked to the fact that WADA was informed very late about the decision under appeal and therefore this proceeding began later and linked to the fact that the number of questions raised by this case made the CAS proceedings more protracted than usual – the athlete had to live with the uncertainty of whether s/he could prepare for and validly participate in qualifications for the Olympic Games, despite this being a particularly important event in any athlete’s career.


On 31 May 2006 the International Federation of Associated Wrestling Styles (FILA) decided to impose a 1 year period of ineligibility on the Ukrainian wrestler Maria Stadnyk after her sample tested positive for the prohibited substance Furosemide. At that time she was registered with the Ukrainian Wrestling Association and later registered with the Azerbaijan Wrestling Federation.

After deliberations between the World Anti-Doping Agency (WADA) and FILA the case was reopened and on 4 September 2006 a sanction of 2 years was imposed by FILA. However on 20 June 2007 the FILA Appeal Commission decided to reduce the sanction and to impose a 15 month period of ineligibility on the Athlete. Here new evidence was introduced that showed that the Athlete’s drink was spiked by another Athlete.

Hereafter in October 2007 WADA appealed the FILA decision of 20 June 2007 with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the FILA decision of 20 June 2007 and to impose a 2 year period of ineligibility on the Athlete.

WADA contended that the Athlete tested positive for a prohibited substance and that she failed to establish how the substance entered her system nor that she established No Fault or No Significant Fault.
The Athlete denied the intentional use of the substance nor that she had problems to fit into her weight category. She asserted that the evidence demonstrated that another Athlete spiked her drink.

The Panel considered the coinciding statements and testimony of the Athletes in question and the certain points of relevance. Here the Panel finds on balance that it is improbable that the Athlete’s drinking water was spiked with Furosemide by another Athlete as alleged while it is more probable than not that the other Athlete did not sabotage the Athlete’s drink. As a result the Panel concludes that the Athlete failed to establish how the substance entered her system nor that she establish No Fault or Nog Significant Fault.

Therefore on 17 July 2008 the Court of Arbitration for Sport decides:

1.) The Court of Arbitration for Sport has jurisdiction to decide the present dispute.
2.) The appeal filed by the World Anti-Doping Agency on 11 October 2007 is admissible.
3.) The World Anti-Doping Agency's appeal is granted.
4.) The decision of FILA, dated 20 June 2007, is set aside.
5.) Ms. Maria Stadnyk is sanctioned with a two-year period of ineligibility, starting on 26 April 2006 and having expired on 25 April 2008.
6.) All results obtained by Ms. Maria Stadnyk in any competitions between 26 April 2006 and 25 April 2008 are disqualified and any medals, points or prizes obtained are forfeited.
7.) The Azerbaijan Wrestling Federation shall pay to WADA an amount of CHF 5,000 (five thousand Swiss Francs) as compensation for fees and expenses incurred in connection with this atbitration.
8.) The award is rendered without costs, except for the CAS office fee that is retained by CAS.
9.) All other prayers for relief are dismissed.

The effects of growth hormone on body composition and physical performance in recreational athletes: a randomized trial.

1 May 2010

Meinhardt U, Nelson AE, Hansen JL, Birzniece V, Clifford D, Leung KC, Graham K, Ho KK. The effects of growth hormone on body composition and physical performance in recreational athletes: a randomized trial. Ann Intern Med. 2010 May 4;152(9):568-77.

Systematic review: the effects of growth hormone on athletic performance.v

17 Mar 2008

Liu H, Bravata DM, Olkin I, Friedlander A, Liu V, Roberts B, Bendavid E, Saynina O, Salpeter SR, Garber AM, Hoffman AR. Systematic review: the effects of growth hormone on athletic performance. Ann Intern Med. 2008 May 20;148(10):747-58. Epub 2008 Mar 17.

Growth hormone, IGF-I and insulin and their abuse in sport.

31 Mar 2008

Holt RI, Sönksen PH. Growth hormone, IGF-I and insulin and their abuse in sport. Br J Pharmacol. 2008 Jun;154(3):542-56. Epub 2008 Mar 31.

Detecting autologous blood transfusions: a comparison of three passport approaches and four blood markers.

1 Apr 2011

Detecting autologous blood transfusions: a comparison of three passport approaches and four blood markers / Mørkeberg J, Sharpe K, Belhage B, Damsgaard R, Schmidt W, Prommer N, Gore CJ, Ashenden MJ. - (Scandinavian journal of medicine & science in sports 21 (20110 2 (Apr) p. 235-43. -
doi: 10.1111/j.1600-0838.2009.01033.x.

Biochemistry, physiology, and complications of blood doping: facts and speculation.

1 Aug 2006

Biochemistry, physiology, and complications of blood doping: facts and speculation / Lippi G, Franchini M, Salvagno GL, Guidi GC. Biochemistry, physiology, and complications of blood doping: facts and speculation. - (Critical reviews in clinical laboratory sciences 43 (2006) 4 : p. 349-391. -
PMID: 16769597 ; DOI: 10.1080/10408360600755313

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