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.

CAS 2011_A_2499 Albert Subirats vs FINA

24 Aug 2011

CAS 2011/A/2499 Albert Subirats v. Fédération Internationale de Natation (FINA), award of 24 August 2011

Related case:
FINA 2011 FINA vs Albert Subirats
May 7, 2011

Aquatics
Swimming
Doping (Whereabouts filing failure)
Responsibility of the athlete for making accurate and complete whereabouts filings
Responsibility of the anti-doping organization in the notification of the filing failures

1. It is the responsibility of each swimmer registered in the FINA Registered Testing Pool to report the required whereabouts information to the FINA office. Even when the athlete chooses to delegate whereabouts filings to a third party such as a national federation, he or she remains ultimately responsible at all times for making accurate and complete whereabouts filings. In particular, the athlete must make sure that such third party effectively forwards the whereabouts information to the anti-doping organization on time.

2. The anti-doping organization is responsible for making an accurate notification to the athlete. If it decides to notify the filing failure communication to the athlete’s national federation instead of directly to the athlete, it has to make sure that the athlete receives such communication from the national federation. If the athlete does not receive the filing failure communication from the national federation, he or she may not be declared to have committed any filing failure.


On 21 June 2011 the International Swimming Federation (FINA) Doping Panel decided to impose a 1 year period of ineligibility on the Venezuelan swimmer Albert Subirats for 3 Whereabouts Filing Failures in 2010 and 2011.

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

Uncontested in this case is the fact that the Athlete always sent the whereabouts information on time to the Venezuelan Swimming Federation (VSF), but that VSF did not forward such information to FINA, neither for the first quarter of 2010, nor for the fourth quarter of 2010, nor for the first quarter of 2011.

In addition, uncontested and supported by the documents in the file is the fact that the FINA notified all three filing failures by letters of 25 February 2010, 11 November 2010 and 2 February 2011 to VSF, only.
No failure notices were ever sent by FINA to the Athlete directly. Also uncontested is the fact that VSF forwarded these communications to the Athlete for the first time on 2 February 2011, i.e. after the third violation had already occurred.

The Panel concludes that, since it is undisputed that the Athlete did not receive any failure notice before the third whereabouts filing failure, the existence of a second and a third violation cannot be reproached to the Athlete.

Therefore the Court of Arbitration for Sport decides on 24 August 2011:

1.) The Appeal filed by Mr Albert Subirats is upheld.
2.) The decision rendered on 21 June 2011 by the FINA Doping Panel is overturned.
3.) The second and the third filing failure for the fourth quarter of 2010 and the first quarter of 2011 are cancelled.
4.) Mr Albert Subirats’ results are fully reinstated.
5.) (…).
6.) (…).
7.) All other motions or prayers for relief are dismissed.

The application of carbon isotope ratio mass spectrometry to doping control.

1 Jul 2008

The application of carbon isotope-ratio mass spectrometry to doping control / Cawley A.T., Flenker U. - (J Mass Spectrom. 2008 Jul;43(7):854-864)

CAS 2009_A_1870 WADA vs Jessica Hardy & USADA

21 May 2010

CAS 2009/A/1870 World Anti-Doping Agency (WADA) v. Jessica Hardy & United States Anti-Doping Agency (USADA)

Related cases:
AAA No. 77 190 00288 08 JENF USADA vs Jessica Hardy - Interim Award
August 1, 2008
AAA No. 77 190 00288 08 USADA vs Jessica Hardy
May 30, 2009
CAS 2011_O_2422 USOC vs IOC
October 10, 2011

Swimming
Doping (Clenbuterol)
Applicable law to the merits according to the principles of tempus regit actum and lex mitior
Conditions for third parties to participate to a CAS procedure
Provision granting a right to a third party to participate in the CAS proceedings
Contaminated nutritional supplements and significant fault or negligence
CAS review of a sanction imposed by a disciplinary body
Negligence of an athlete with respect of the nutritional supplements
Conditions for a Claimant to obtain a declaratory judgment

1. According to the principle “tempus regit actum”, new regulations do not apply retroactively to facts that occurred prior to their entry into force, but only for the future. However, according to the “lex mitior” principle, CAS Panels have the possibility to apply those rules subsequently entered into force which are more favourable to the athlete

2. In the CAS system a third entity can participate as a party to the arbitration proceedings already pending among other subjects in two situations, joinder or intervention, but subject to a common condition: that it agrees in writing to such participation or that it is bound by the same arbitration agreement binding the original parties to the dispute. The common condition is not satisfied if the third party has not agreed to participate in the arbitration, notwithstanding the opportunity to intervene granted by the Panel and if the same party is not bound by the same arbitration agreement binding the original parties to the dispute.

3. Under the FINA Rules, the IOC is given the right to appeal to CAS any decision rendered under the FINA Rules “where the decision may have an effect in relation to the Olympic Games, including decisions affecting eligibility for the Olympic Games”. Such provision grants a right of appeal to a subject that was not a party to the proceedings leading to the decision appealed against. Such provision, however, even if granting a right, does not create an obligation for the IOC to participate in the CAS proceedings: this obligation can rest only upon the IOC’s consent or a rule binding it – and the FINA Rules do not bind the IOC.

4. The fact that an adverse analytical finding is the result of the use of a contaminated nutritional supplement does not imply per se that the athlete’s negligence was “significant”. An athlete can avoid the risks associated with nutritional supplements by simply not taking them; but the use of a nutritional supplement “purchased from a source with no connection to prohibited substances, where the athlete exercised care in not taking other nutritional supplements” and the circumstances are “truly exceptional”, can give rise to “ordinary” fault or negligence and do not raise to the level of “significant” fault or negligence.

5. According to the CAS case law, the measure of the sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rules can be reviewed only when the sanction is evidently and grossly disproportionate to the offence.

6. An athlete’s behaviour is negligent if the Adverse Analytical Finding occurs years after that the risks connected to the use of nutritional supplements had first become known to athletes, since much information has been given and stringent warnings have been issued in this respect.

7. Swiss law subjects to stringent conditions the possibility for a Claimant to obtain from a Swiss court a declaratory judgment. Such conditions are also relevant in these arbitration proceedings, since Swiss law applies subsidiarily and Swiss law also defines the powers of adjudication of arbitration bodies having their seat in Switzerland. The prerequisites for a declaratory judgment are – in principle – threefold. The party seeking declaratory relief must show a legal interest to do so. The latter presupposes that the declaratory judgment is necessary to resolve a legal uncertainty that threatens the Claimant. A legal interest is missing if a declaratory judgment is insufficient or falls short of protecting the Claimant’s interests. Furthermore, the legal uncertainty must relate to the existence or non existence of a claim or a defined legal relationship between the parties to the dispute. Finally, there must be a certain urgency to resolve the uncertainty in order to protect the respective party’s right, i.e. there must be an immediate interest for solving the uncertainty now.


In July 2008 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the Athlete Jessica Hardy after her A and B samples tested positive for the prohibitied substance clenbuterol.

After an Interim Award of 1 August 2008 the North American Court of Arbitration for Sport Panel (AAA) considered the Athlete's negligence with the use of contaminated supplements and decided in a Final Award on 30 May 2009 to impose a 1 year period of ineligibility on the Athlete.

Hereafter in June 2009 WADA appealed this AAA Panel Final Award of 30 May 2009 with the Court of Arbitration for Sport (CAS).
With this appeal against the Final Award both WADA and FINA withdrew in June 2009 their appeals ( CAS 2009/A/1852 & CAS 2009/A/1853) against the previous issued AAA Interim Award of 1 August 2008.

The CAS Panel notes that the AAA Final Award is challenged in this arbitration under several perspectives: both parties, in fact, dispute the measure of the sanction imposed on Hardy. On one side, the WADA submits that the AAA Panel wrongly held Hardy to be entitled to a reduction in the sanction under FINA DC 10.5.2 and therefore requests that a second year of suspension be imposed on Hardy. On the other side, the Athlete argues that the sanction imposed on her, taking into account the IOC Rule, is excessive, and therefore requests that the Panel either declares that the IOC Rule is inapplicable or reduces the sanction to six months.

The Panel finds that the measure of the sanction cannot be determined taking into account the IOC Rule. In particular, the Panel finds that its approach does not prevent the Athlete Hardy from getting judicial relief and does, therefore, not amount to a denial of access to justice. The sanction of the ineligibility for one year is proportionate to the kind of misconduct and level of negligence found with the Athlete. The prior body, i.e. the AAA Panel, therefore, was correct in imposing it on Hardy.

Therefore on 21 May 2010 the Court of Arbitration for Sport decides:

1.) The appeal filed by the World Anti-Doping Agency against the AAA Final Award issued on 30 May 2009 is dismissed.
2.) (…)
3.) (…)
4.) All other prayers for relief are dismissed.

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