CAS 2009_A_1759 FINA vs Max Jaben & Israel Swimming Association

13 Jul 2009

CAS 2009/A/1759 FINA v. Max Jaben & ISA
CAS 2009/A/1778 WADA v. Max Jaben & ISA

CAS 2009/A/1759 FINA vs Max Jaben & Israel Swimming Association
CAS 2009/A/1778 WADA vs Max Jaben & Israel Swimming Association

CAS 2009/A/1759 & 1778 Fédération Internationale de Natation (FINA) & World Anti-Doping Agency (WADA) v. Max Jaben & Israel Swimming Association (ISA)

Aquatics (swimming)
Doping (boldenone and boldenone metabolites)
Imperative character of the rules establishing deadlines to file an appeal
Notification of disciplinary decisions to WADA and WADA’s right to appeal
Presence of a prohibited substance in both samples
Chain of custody and adverse analytical finding
Beginning of the suspension period

1.) It would violate fundamental principles of fairness if procedural deadlines such as the filing deadline in the anti-doping rules of an international federation were to stand at the free disposition of the prosecuting parties especially if the accused athlete remained uninformed of such communications which ultimately affect his procedural rights. Possible erroneous assumptions on jurisdiction cannot be placed at the burden of the athlete and thus an appeal filed beyond the 21-days limit has to be declared inadmissible.

2.) WADA is not obliged to actively and unilaterally enquire about a decision to be issued by a federation in order to preserve its own right to appeal, since this would place an undue burden upon the WADA and possibly hinder the fight against doping. It would require that WADA actively monitor each and every of the hundreds of 1st instance disciplinary decisions on the national level.

3.) So long as a prohibited substance was found to be present in both the A and B sample analyses and was also found to be of exogenous origin, the fact that a second prohibited substance was not present in the B sample does not invalidate the finding of an anti-doping violation on the grounds of the rule “If the sample “B” proves negative, the entire test shall be considered negative and the Competitor, his Member Federation, and FINA shall be so informed”.

4.) Claims of departures from the International Standard for Laboratories and the International Standard for Testing, such as breach of the “chain of custody” in the handling of the samples, remain unsubstantiated if it cannot be established that these alleged violations of the International Standards have caused the adverse analytical finding.

5.) The sanctioned athlete has a right to an expeditious hearing and timely completion of the adjudicative process. So long as the sanctioned athlete has no control over procedural delays and bears no responsibility for them, it is fair and appropriate to deduce the period of delay from the overall period of his provisional suspension.


In June 2008 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Israeli swimmer Max Jaben after his A and B samples tested positive for the prohibited substance Boldenone. On 19 November 2008 the Israel Swimming Association (ISA) decided to impose a 1 year period of ineligibility on the Athlete. This decision was appealed with the ISA High Court of Arbitration and dismissed on 15 December 2008 due to the High Court had no jurisdiction when it involved an international-level athlete.

Hereafter in January 2009 both FINA and WADA appealed the Israeli decisions of 19 November 2008 and 15 December 2008 with the Court of Aribtration for Sport (CAS). However the FINA appeal was not filed within the time limit of 21 days. WADA requested the Panel to set aside the Israeli decisions and to impose a 2 year period of ineligibility on the Athlete.

WADA argued that the Athlete failed to demonstrate how the prohibited substance entered his system and the Athlete’s allegations about the process of sample analysis are without merit. Both the Athens and Cologne Labs are WADA-accredited, the Athlete failed to establish any departure from the International Standard for Testing and his allegations regarding the validity of the IRMS analyses are erroneous.

The Athlete denied the intentional use of the prohibited substance and contended that the analytical finding of the Athens and Cologne Labs were contradictory. Due to errors and delays in the laboratory procedures, the unsafe chain of custody and the discrepancies in the laboratory findings the Athlete claimed that he should be acquitted.

The Panel finds that the identity of the substance in both samples had been established both by the Athens and Cologne Laboratories on the basis of their respective analyses. The task of the IRMS analysis was to prove the exogenous origin of the boldenone metabolite. In the view of the Panel, the Cologne Laboratory confirmed such exogenous origin.

The Panel holds that, apart from the delayed processing of the samples by the Athens and the Cologne Laboratories, the Athlete’s claims of other departures from the International Standard for Laboratories and the International Standard for Testing remain unsubstantiated. This is particularly the case with regard to his charge that the chain of custody in the handling of the samples has been breached. The Athlete does not claim that these alleged violations of the International Standards have caused the adverse analytical finding. As a result the Panel rules that the presence of boldenone metabolite in both specimens, which was proved in IRMS testing to be of exogenous origin, is sufficient to support the doping violation.

Therefore the Court of Arbitration for Sport decides on 13 July 2009:

1.) The appeal of the World Anti-Doping Agency against the decisions of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 and of the High Court of the Israel Swimming Association dated 15 December 2008 is declared admissible and is partially upheld.
2.) The appeal of the Federation Internationale de Natation against the decisions of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 and of the High Court of the Israel Swimming Association dated 15 December 2008 is declared inadmissible.
3.) The decision of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 is modified; Mr Jaben is declared ineligible for a period of two (2) years, commencing as of 30 April 2008 without any interruption.
4.) All competitive results achieved by Mr Jaben from 30 April 2008 through 5 June 2008, the date of his provisional suspension, and between the date he resumed competition pursuant to the decision of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 until the date of this award shall be invalidated with the consequence that all medals, points and prizes shall be forfeited.
5.) This award is pronounced without costs, except for the non-reimbursable Court Office fee of CHF 500 (five hundred Swis Francs) already paid by each of the Appellants and to be retained by the CAS.
6.) Mr Jaben is ordered to pay to the World Anti-Doping Agency an amount of CHF 1,000 (one thousand Swiss Francs) as a contribution towards the latter’s legal and other costs incurred in connection with the present arbitration.
7.) The Israel Swimming Association is ordered to pay to the World Anti-Doping Agency an amount of CHF 2,000 (two thousand Swiss Francs) all a contribution towatds the latter's legal and other costs incurred in connection with the present arbitration.
8.) Mr Jaben, the Israel Swimming Association and the Federation Internationale de Natation shall bear their own legal and other costs.
9.) All other motions or petitions for relief are dismissed.

Effect of rhEPO administration on serum levels of sTfR and cycling performance.

1 Jul 2000

Birkeland KI, Stray-Gundersen J, Hemmersbach P, Hallen J, Haug E, Bahr R. Effect of rhEPO administration on serum levels of sTfR and cycling performance. Med Sci Sports Exerc. 2000 Jul;32(7):1238-43.

Effects of erythropoietin administration in training athletes and possible indirect detection in doping control.

1 May 1999

Audran M, Gareau R, Matecki S, Durand F, Chenard C, Sicart MT, Marion B, Bressolle F. Effects of erythropoietin administration in training athletes and possible indirect detection in doping control. Med Sci Sports Exerc. 1999 May;31(5):639-45.

CAS 2007_A_1252 FINA vs Oussama Mellouli & Fédération Tunisienne de Natation

11 Sep 2007

TAS 2007/A/1252 FINA c/Oussama Mellouli & Fédération Tunisienne de Natation
TAS 2007/A/1252 Fédération Internationale de Natation (FINA) c. M. & Fédération Tunisienne de Natation (FTN)
CAS 2007/A/1252 FINA vs Oussama Mellouli & Fédération Tunisienne de Natation

Natation
Dopage (Amphétamines – ’Adderall’)
Négligence significative de l’athlète
Inadéquation de la réglementation avec les circonstances particulières de l’espèce
Début de la période de suspension

1. Pour bénéficier de l’application de l’article DC 10.5.2 du Règlement antidopage FINA (absence de négligence ou de faute significative justifiant une réduction de la suspension), un athlète doit non seulement démontrer comment la substance interdire pénètre son organisme mais aussi qu’il ou elle n’a commis aucune faute ou négligence significative. Selon la jurisprudence du TAS, l’examen de la faute ou négligence significative doit être fait en fonction des circonstances particulières de chaque cas d’espèce. Même en état de stress et de fatigue, un sportif d’élite ne peut totalement occulter de son esprit l’obligation qui est la sienne d’éviter qu’une quelconque substance interdite ne pénètre dans son organisme. Le fait que l’usage de l’Adderall soit de plus en plus fréquent dans les universités d’Amérique du nord ne saurait excuser une telle prise de risque surtout de la part d’un étudiant de division “sport-études” qui évolue de surcroît au plus haut niveau mondial de sa discipline.

2. Exceptionnellement, la sanction prévue par l’application stricte des règles antidopage d’une fédération sportive peut apparaître disproportionnée par rapport au comportement reproché à l’athlète, et non conforme au but – à la fois répressif et éducatif – recherché par lesdites règles. Il serait particulièrement inéquitable de ne pas tenir compte des circonstances particulières de chaque espèce même si la négligence est significative et de sanctionner de la même manière celui qui refuse d’admettre avoir pris intentionnellement des produits à fort pouvoir dopant durant une longue période et qui conteste les résultats pourtant clairs des analyses et l’athlète ayant commis une négligence isolée qui s’inscrit dans le cadre d’un parcours jusqu’ici irréprochable. Il s’agit de faire preuve d’une adéquation entre la faute ou la négligence significative et la sanction dans l’application du système répressif, même si le système lui-même se veut très strict.

3. En cas de délais dans la procédure d’audition ou d’autres aspects du contrôle du dopage non imputables à l’athlète, la période de suspension peut commencer à une date antérieure, pouvant remonter à la date de la collecte de l’échantillon.


On 8 March 2007 the Disciplinary Committee of the Tunisian Swimming Federation (FTN) decided to impose a reprimand on the Athlete Oussama Mellouli after he tested positive for the prohibited substance Amphetamine. Here the Athlete admitted the violation, accepted the test result and a provisional suspension. He explained that he had used a tablet (Adderall) at the university to stay awake for his studies.

Hereafter in March 2007 FINA appealed the FTN decision with the Court of Arbitration for Sport. FINA requested to Panel to set aside the FTN decision and to impose a 2 year period of ineligibility on the Athlete. FINA argued that the Athlete tested positive for a prohibited sumbstance and as a result committed an anti-doping rule violation.

The Panel concludes that the Athlete's Fault or Negligence was significant in this case. Considering the circumstances the Panel decides on 11 September 2007 to impose a proportional 18 month period of ineligibility on the Athlete starting on the date of the sample collection, i.e on 30 November 2006.

A comparison of the physiological response to simulated altitude exposure and r-HuEpo administration.

1 Nov 2001

Ashenden MJ, Hahn AG, Martin DT, Logan P, Parisotto R, Gore CJ. A comparison of the physiological response to simulated altitude exposure and r-HuEpo administration. J Sports Sci. 2001 Nov;19(11):831-7.

The ergogenic effect of recombinant human erythropoietin on VO2max depends on the severity of arterial hypoxemia.

20 Aug 2008

Robach P, Calbet JA, Thomsen JJ, Boushel R, Mollard P, Rasmussen P, Lundby C. The ergogenic effect of recombinant human erythropoietin on VO2max depends on the severity of arterial hypoxemia. PLoS One. 2008 Aug 20;3(8):e2996.

Effects of erythropoietin administration on cerebral metabolism and exercise capacity in men.

3 Jun 2010

Rasmussen P, Foged EM, Krogh-Madsen R, Nielsen J, Nielsen TR, Olsen NV, Petersen NC, Sørensen TA, Secher NH, Lundby C. Effects of erythropoietin administration on cerebral metabolism and exercise capacity in men. J Appl Physiol. 2010 Aug;109(2):476-83. Epub 2010 Jun 3.

CAS 2011_A_2495 FINA vs César Augusto Cielo Filho, Nicholas Araujo Dias dos Santos, Henrique Ribeiro Marques Barbosa, Vinicius Rocha Barbosa Waked & CBDA

29 Jul 2011

CAS 2011/A/2495 FINA v. César Augusto Cielo Filho & CBDA
CAS 2011/A/2496 FINA v. Nicholas Araujo Dias dos Santos & CBDA
CAS 2011/A/2497 FINA v. Henrique Ribeiro Marques Barbosa & CBDA
CAS 2011/A/2498 FINA v. Vinicius Rocha Barbosa Waked & CBDA

CAS 2011/A/2495 Fédération Internationale de Natation (FINA) v. César Augusto Cielo Filho & Confederação Brasileria de Desportos Aquáticos (CBDA) and CAS 2011/A/2496 FINA v. Nicholas Araujo Dias dos Santos & CBDA and CAS 2011/A/2497 FINA v. Henrique Ribeiro Marques Barbosa & CBDA and CAS 2011/A/2498 FINA v. Vinicius Rocha Barbosa Waked & CBDA

Aquatics (swimming)
Doping (furosemide)
Contamination of a caffeine capsule with a diuretic
Nature of caffeine for the purposes of the FINA Rules / WADC
Appropriate sanction with regard to the individual athlete’s degree of fault
Appropriate sanction to a recidivist
Commencement of the period of ineligibility

1. Neither the FINA Rules nor the WADC defines, or distinguishes, what is a “medication” on the one hand and what is a “supplement” on the other. Caffeine is readily available, without medical intervention, in many forms such as in energy drinks and in coffee. Moreover, an ordinary person would not regard caffeine as a medication. Therefore caffeine can be considered a “supplement” as that term is used in the comment to Rule DC10.4 (FINA Doping Control Rules). It is irrelevant, for so classifying it, that it was “prescribed” as opposed to being bought over the counter. The way the caffeine was acquired cannot change its fundamental character. It follows that Rule DC 10.4 is applicable and that Rule DC 10.5.1 is not available to the athletes. As a result, the athletes cannot establish that they bear “No Fault or Negligence” for the purpose of Rule DC 10.5.1 and that no sanction is appropriate.

2. Rule DC 10.4 prerequisites’ are satisfied where none of the alleged facts as to how the prohibited substance entered the athletes’ bodies have been contested and where it was agreed that the athlete did not wish to enhance their sportive performance. Rule DC 10.4 expressly provides that the athlete’s degree of fault is the sole criterion for determining the appropriate sanction. In this respect, the fact that the athletes have taken the necessary precautions before taking caffeine pills (prescription from their doctor, controlled pharmacy, certificate of purity of the caffeine) and that more precautions could not have been expected from them, should be taken into consideration.

3. An athlete who has committed a second doping offence is subject to Rule DC 10.7. Under this rule, a 1 year suspension which is the mandated minimum period of ineligibility does not infringe the principle of proportionality.

4. By waiving the testing of his B Sample, an athlete admits his anti doping rule violation and, in these circumstances is entitled to the benefit of Rule DC 10.9.2 which confers a discretion on a panel to determine that the period of ineligibility may start as early as the date of the sample collection.


In May 2011 the Brazilian Water Sports Confederation, Confederação Brasileira de Desportos Aquáticos (CBDA), has reported anti-doping rule violations against the 4 Athletes after their samples tested positive for the prohibited substance furosemide.

Here the Athletes used caffeine capsules, prescribed by their sports medicine specialist, since 2010. However the batch of caffeine capsules made and used in May 2011 became contaminated with the substance furosemide in the pharmacy.

On 1 July 2011 the CBDA Anti-Doping Panel concluded that there is ‘no fault or negligence’ on the part of the Athletes and therefore decided that the appropriate sanction is a warning and the disqualification of the Athlete’s competition results.

Hereafter in July 2011 FINA appealed the CBDA decision with the Court of Arbitration for Sport (CAS).

In these cases the CAS Panel concludes that the only appropriate sanction to impose on the 3 Athletes is a warning and therefore confirms the CBDA decision of 1 July 2011.

Previously the Athlete Vinicius Rocha Barbosa Waked had committed an anti-doping rule violation in February 2010 due to inadvertently using a medicine which contained a stimulant.
As a result the Panel concludes that the Athlete has committed another anti-doping rule violation at the lowest end of the fault spectrum.

Therefore the CBDA decision of 1 July 2011 is set aside and the CAS Panel decides to impose a 1 year period of ineligibility on the Athlete, starting on the date of the sample collection, i.e. on 7 July 2011.

Confirming testosterone administration by isotope ratio mass spectrometric analysis of urinary androstanediols.

1 Apr 1997

Confirming testosterone administration by isotope-ratio mass spectrometric analysis of urinary androstanediols / Shackleton CH, Phillips A, Chang T, Li Y. - (Steroids 1997 Apr;62(4):379-87)


A gas chromatographic combustion isotope ratio mass spectrometric (GC/C/IRMS) method was used for studying the incorporation of exogenous testosterone enanthate into excreted urinary 5 alpha- and 5 beta-androstane-3 alpha, 17 beta-diols. A multistep but straightforward work-up procedure produced a simple GC chromatogram of urinary steroid acetates composed principally of two androstanediols and pregnanediol. It is anticipated that such a method may form the basis of a doping control test for testosterone that could be used as a primary method during major sporting events or alternatively as a verification technique. Urine samples from five individuals were collected before and after administration of testosterone enanthate (250 mg). The delta 13C0/1000 value of andro-stanediols was around -26 to -28 during the baseline period and decreased to about -29 to -30 in the days following synthetic testosterone administration. One of the other major steroids in the chromatogram, pregnanediol, was utilized as the "internal standard," because its delta 13C0/1000 values did not markedly change following testosterone administration, remaining at -25 to -27. In all subjects studied, the delta 13C0/1000 values for androstanediols were reduced sufficiently over 8 days to confirm administration of synthetic testosterone. Although steroids isolated from urine of normal individuals from 12 different countries gave values between -24 and -28, this seemed not to be related to nationality or region. The most likely variable is the proportion of plants with low and high carbon 13 content in the diet. This variable is likely to be more affected by individual food preferences than broad ethnic food divisions. In this paper, we propose a ratio of delta 13C0/1000 for androstanediols to pregnanediol as a useful discriminant of testosterone misuse, a value above 1.1:1.0 being indicative of such misuse. The work-up procedure was designed for batch analysis and to use only simple techniques, rather than employ further instrumentation, such as high-performance liquid chromatography (HPLC), in purifying steroids for GC/C/IRMS.

Carbon isotope ratio (delta13C) values of urinary steroids for doping control in sport.

13 Nov 2008

Cawley AT, Trout GJ, Kazlauskas R, Howe CJ, George AV. Carbon isotope ratio (delta13C) values of urinary steroids for doping control in sport. Steroids. 2009 Mar;74(3):379-92. Epub 2008 Nov 13.

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