12 Sep 2011
CAS 2010/A/2296 Simon Vroemen v/ Koninklijke Nederlandse Atletiek Unie & Anti-Doping Autoriteit Nederland
Burden and standard of proof regarding departures from International Standards
Validity of sample collection and storage
Minor documentation defect
Transportation of sample
“Different analyst” rule
CAS scope of review regarding the validation of a detection method
Delivery of the Laboratory’s standard operating procedures (SOPs)
Purpose of the analysis of the B sample for a non-threshold substance
1. According to the applicable provisions of the Dutch Institute for Sports Law (ISR) Doping Regulations, when an adverse analytical finding is reported by a WADA-accredited laboratory, there is a presumption that the applicable International Standards were respected throughout the whole anti-doping process. The burden is thus on the athlete to establish, by a balance of probability, a departure from the International Standard for Testing (IST) or International Standard for Laboratories (ISL) either during the collection, handling and transport of the samples or during the analysis, custodial and review procedures in the laboratory. If the athlete does prove any such departure, the burden shifts back to the anti-doping organization to prove – to the comfortable satisfaction of the hearing body, bearing in mind the seriousness of the allegation which is made – that the departure did not cause the adverse analytical finding.
2. Where on the balance of probability, an athlete’s allegations concerning the sample collection and storage procedure have not been proven, it must be concluded that the anti-doping test performed by the Doping Control Officer (DCO) on the athlete was properly carried out and that the samples were properly stored in accordance with the applicable collection procedures.
3. A declaration signed by an athlete that s/he was satisfied with the sample collection procedure cures any minor documentation defect such as the absence on the Doping Control Form of the athlete’s address and sport discipline, which, as a consequence and in terms of the applicable rules, cannot even be regarded as a true “departure” from the IST.
4. Three and half days between the end of the sample collection and the arrival of the sample at an accredited Lab does not constitute an unacceptable period of transport and certainly cannot be characterized as being “too long” in terms of the IST. This time-frame is arguably not ideal but it is in line with common testing practice, especially when sample collection occurs far away from a WADA-accredited laboratory.
5. No departure from ISL relating to the “different analyst rule” prohibiting the same person to participate in the A and B sample analysis can be retained if an athlete did not satisfy his/her burden of proof in this respect on the balance of probability.
6. A CAS panel cannot place in question whether an ISO accreditation was correctly attributed to a laboratory, because this would render the whole international standardization and certification system meaningless and because, notoriously, compliance with ISO accreditation requirements is regularly checked by external auditors. However, a CAS panel may certainly verify whether a given method used by a laboratory is covered by the accreditation or not. In any event, it is for an athlete to establish on a balance of probability, that either method is not validated for specificity.
7. No rule obliges an accredited Lab to deliver the Laboratory’s standard operating procedures (SOPs). In fact, pursuant to the WADA Technical Document TD2003LDOC, the Laboratory is not required to support an Adverse Analytical Finding by producing SOPs, general quality management documents (e.g., ISO compliance documents) or any other documents not specifically required. However, the above WADA provision does not and may not preclude a CAS panel, if the conditions set forth by article R44.3 of the CAS Code are met, from ordering an anti-doping organization to produce specified and relevant extracts from the SOPs of a WADA-accredited laboratory.
8. ISL provisions make clear that, in the case of a non-threshold substance, the laboratory method for analyzing the B sample is not aimed at having identical analytical results or at gaining information on the background or the quantification, but only at confirming the presence of the prohibited substance. In other terms, the ISL only requires the identification in the B sample of the same prohibited substance that was found in the A sample.
In June 2008 the Royal Dutch Athletics Association (Koninklijke Nederlandse Atletiek Unie, KNAU) has reported an anti-doping rule violation against the Dutch Athlete Simon Vroemen after his A and B samples tested positive for the prohibited substance metandienone.
In his defence the Athlete disputed the irregularities in the sample collection procedure, the chain of custody and the competence and capability of the laboratory.
The KNAU Decision Disciplinary Committee accepted the Athlete's arguments and decided, after two interim decisions, on 28 January 2010 for acquittal of the Athlete. However the Dopingautoriteit (Anti-doping Authority Netherlands) appealed the KNAU decision and on 22 September 2010 the KNAU Appeal Committee decided to impose a 2 year period of ineligibility on the Athlete.
Hereafter in November 2010 the Athlete appealed the decision of 22 September 2010 with the Court of Arbitration for Sport (CAS). The Athlete requested the CAS Panel to set aside the decision, acquit him of the anti-doping violation and to lift the suspension.
The Panel holds that the Appellant has not satisfied his burden of proving, in accordance with the balance of probability standard, that his adverse analytical finding derived from his legitimate ingestion of budesonide before the anti-doping control.
As a result the Panel, in evaluating the evidence submitted by the parties, holds that the Respondents have discharged their burden of proving to the comfortable satisfaction of the Panel, hearing in mind the seriousness of the allegation, that a metabolite of metandienone was present in the Athlete's urine samples. Metandienone and its metabolites are prohibited substances as evidenced by their inclusion in the Prohibited List in force at the time of the offence.
Therefore the Court of Arbitration for Sport rules on 12 September 2011:
1.) The appeal filed by Mr. Simon Vroemen against the decision issued on 10 November 2010 by the Appeal Committee of the Dutch Institute for Sports Law is dismissed.
2.) The decision issued on 10 November 2010 by the Appeal Committee of the Dutch Institute for Spoils Law is hereby confirmed.
3.) Mr. Simon Vroemen is declared ineligible for a period of two years, starting from 10 November 2010, whereby the period of ineligibility already seived by Mr. Vroemen on the basis of the decision of the KNAU dated 21 July 2008 shall be credited to this sanction.
4.) The costs of the present arbitration, to be determined and served to the parties by the CAS Conit Office, shall be boiiie by Mr, Simon Vroemen.
5.) Mr. Simon Vroemen is ordered to pay to the Anti-Doping Autoriteit Nederland an amount of CHF 10,000 (ten thousand Swiss Francs) as a contribution towards the latter's costs incnn'ed in connection with the present arbitration.
6.) All other requests, motions or prayers for relief are rejected.