CAS 2001_A_317 Fritz Aanes vs FILA

9 Jul 2001

CAS 200I/A/317 Aanes v/FILA
CAS 2001/A/317 A. / Fédération Internationale de Luttes Associées (FILA)

Doping (nandrolone)
Use of nutritional supplements
Strict Liability Rule
Mitigating circumstances

1. The legal relations between an athlete and a federation are of a civil nature and do not leave room for the application of principles of criminal law. This is particularly true for the principles of in dubio pro reo and nulla poena sine culpa and the presumption of innocence as enshrined in Art. 6 ECHR.

2. It is perfectly proper for the rules of a sporting federation to establish that the results achieved by an athlete at a competition during which he was under the influence of a prohibited substance must be cancelled irrespective of any guilt on the part of the athlete. This conclusion is the natural consequence of sporting fairness against the other competitors. The interests of the athlete concerned in not being punished without being guilty must give way to the fundamental principle of sport that all competitors must have equal chances.

3. If the federation is able to establish the objective elements of a doping offence, there is a presumption of guilt against the athlete. The principle of presumed fault on the part of the athlete does not, however, leave him without protection because he/she has the right to rebut the presumption, i.e. to establish that the presence of the prohibited substance in his/her body was not due to any intent or negligence on his/her part.

4. An athlete cannot exculpate himself/herself by simply stating that the container of the particular product taken by him/her did not specify that it contained a prohibited substance. It is obvious that the sale of nutritional supplements, many of which are available over the internet and thus sold without an effective governmental control, would go down dramatically if they properly declared that they contain (or could contain) substances prohibited under the rules governing certain sports. Therefore, to allow athletes the excuse that a nutritional supplement was mislabelled would provide an additional incentive for the producers to continue that practice. In summary, therefore, it is no excuse for an athlete found with a prohibited substance in his/her body that he/she checked the label on the product he took and that the label did not specify that the product contained a prohibited substance.

When taking into consideration all the elements of this case, in particular the fact that the Appellant acted negligently but without intern to indulge in doping, the Panel is of the view that, based on the evidence produced, there are mitigating circumstances which warrant a reduction of the maximum penalty allowed under the rules and regulations of the Respondent. As a result the Panel is of the opinion that it is adequate and appropriate to suspend the Appellant for 15 months. As regards the date upon which the suspension should begin, the Panel takes note of the fact that the sanction imposed by the Respondent started to run on the date the test was carried out (27 September 2000). The Panel sees no reason why it should change this date. Therefore, the Applicant's suspension will last until 26 December 2001.

On 9 July 2001 the Court of Arbitration for Sport rules:
1.) The appeal filed by A. on 3 January 2001 is partially upheld.
2.) The decision of the FILA Sport Judge of 24 October 2000 shall be modified as follows: A. is suspended for a period of 15 months from 27 September 2000 to 26 December 2001.
3.) (…).

CAS 2011_O_2422 USOC vs IOC

4 Oct 2011

CAS 2011/O/2422 United States Olympic Committee (USOC) v. International Olympic Committee (IOC)

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
AAA No. 77 190 00293 10 USADA vs Lashawn Merritt
October 15, 2010
CAS 2009_A_1870 WADA vs Jessica Hardy & USADA
May 21, 2010
CAS 2009_O_1824 IOC
June 11, 2009

Validity and enforceability of a rule prohibiting doped athletes from participation in the next Olympic Games
Definition of eligibility rules
Definition of sanctions
Proper characterisation of the rule
Consistency with the WADA Code
Principle of autonomy of the association
Consistency with the Olympic Charter
Principle of double jeopardy or ne bis in idem

1. CAS jurisprudence has indicated that qualifying or eligibility rules are those that serve to facilitate the organization of an event and to ensure that the athlete meets the performance ability requirement for the type of competition in question. A common point in qualifying (eligibility) rules is that they do not sanction undesirable behaviour by athletes. Qualifying rules define certain attributes required of athletes desiring to be eligible to compete and certain formalities that must be met in order to compete.

2. In contrast to qualifying rules are the rules that bar an athlete from participating and taking part in a competition due to prior undesirable behaviour on the part of the athlete. Such a rule, whose objective is to sanction the athlete’s prior behaviour by barring participation in the event because of that behaviour, imposes a sanction. A ban on taking part in a competition can be one of the possible disciplinary measures sanctioning the breach of a rule of behaviour.

3. Having regard to its objective and purpose and to its scope and application, a rule prohibiting doped athletes from participation in the next Olympic Games is more properly characterised as a sanction of ineligibility for a major Competition, i.e. as a disciplinary measure taken because of a prior behaviour, than as a pure condition of eligibility to compete in the Olympic Games. Even if one accepts that the rule has elements of both an eligibility rule and a sanction, it nevertheless operates as, and has the effect of, a disciplinary sanction.

4. A rule prohibiting doped athletes from participation in the next Olympic Games provides for a period of ineligibility (non-participation) that is not provided for under Article 10 of the WADA Code. In so doing, the rule constitutes a substantive change to the WADA Code, which Signatories of the WADA Code have contractually committed themselves not to do and which is prohibited by Article 23.2.2 of the WADA Code.

5. Recognised by the Swiss federal Constitution and anchored in the Swiss law of private associations is the principle of autonomy, which provides an association with a very wide degree of self-sufficiency and independence. The right to regulate and to determine its own affairs is considered essential for an association and is at the heart of the principle of autonomy. One of the expressions of private autonomy of associations is the competence to issue rules relating to their own governance, their membership and their own competitions. However, this autonomy is not absolute.

6. Because the Panel has found that the rule prohibiting doped athletes from participation in the next Olympic Gamesis not in compliance with the WADA Code, and because the WADA Code has been incorporated into the Olympic Charter, the rule is not in compliance with the IOC’s Statutes, i.e. the Olympic Charter.

7. CAS case law has consistently held that the principle of ne bis in idem can apply to sanctions under sports law and academic authorities on the subject have come to the same conclusion. If the ne bis in idem principle is indeed applicable to sanctions imposed under anti-doping regulations, the rule prohibiting doped athletes from participation in the next Olympic Games would contravene this principle. The effective purpose of the sanction is the same (even if the underlying motivations are different); the sanction is attributable to the same behaviour, and the sanction results in the same consequence, ineligibility from Competition.

The IOC Executive Board, at its meeting in Osaka, Japan on 27 June 2008, enacted the following rule which has come to be known as the “Osaka Rule”:
“The IOC Executive Board, in accordance with Rule 19.3.10 OC and pursuant to Rule 45 OC, hereby issues the following rules regarding participation in the Olympic Games:
1.) Any person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension.
2. These Regulations apply to violations of any anti-doping regulations that are committed as of 1 July 2008. They are notified to all International Federations, to all National Olympic Committee and to all Organizing Committees for the Olympic Games”.

The IOC Regulation came into effect in July 2008 but does not appear to have impacted any athletes who applied to attend the Vancouver Winter Olympic Games in February 2010. However, the IOC Regulation will impact a number of athletes around the world for the 2012 Summer Olympic Games in London. The IOC Regulation appears to have also affected doping adjudications since it came into effect.

In one of those athletes’ situations, the IOC Regulation came under scrutiny before AAA/North American Court of Arbitration for Sport in the case USADA v. LaShawn Merritt (referred to as the “Merritt Award”). In the Merritt Award, the AAA Panel was required to determine whether the IOC Regulation could be applied to Mr. Merritt, who had tested positive for the banned substance DHEA in a series of out-of-competition tests.
The enforceability of the IOC Regulation also arose in an arbitration involving another U.S. athlete, Jessica Hardy. Ms. Hardy tested positive for clenbuterol in July of 2008. In light of the positive test, Ms. Hardy withdrew from the 2008 Olympic team. The AAA Panel in the Hardy matter held that Ms. Hardy should be suspended from competition for one year, i.e. the minimum period allowed under the governing rules.
The Panel further determined that it would be manifestly unfair and a grossly disproportionate penalty for Ms. Hardy to be subject to the application of the IOC Regulation, which had come into effect only three (3) days prior to her positive drug sample.

Both parties to this proceeding recognized that there was considerable uncertainty facing the world’s aspiring Olympic athletes and their national Olympic committees because of the IOC Regulation. In recognition of these concerns and to their credit, in April 2011 the parties voluntarily entered into an Arbitration Agreement and submitted this dispute for resolution by the Panel in a CAS Ordinary Arbitration Procedure.

The CAS Panel concludes for the reasons set out in this Award and taking in due consideration all arguments submitted by the parties as well as the amicus curiae briefs filed by third parties, that the IOC Regulation is not in compliance with the WADA Code and violates the IOC’s own Statutes. The Arbitration Agreement provides for this dispute to “be submitted exclusively to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, and settled definitively in accordance with the Code of Sports-related arbitration, under the rules applicable to the Ordinary Arbitration Procedure”. In the exercise of this power conferred upon the Panel by the Arbitration Agreement and in light of these findings, the IOC Regulation is found to be invalid and unenforceable.

Therefore on 4 October 2011 the Court of Arbitration for Sport decides:

1.) The IOC Executive Board’s June 27, 2008 decision prohibiting athletes who have been suspended for more than six months for an anti-doping rule violation from participating in the next Olympic Games following the expiration of their suspension is invalid and unenforceable.
2.) (…).

CAS 2007_A_1201 Nathan Baggaley vs Australian Canoe, ICF & Surf Life Saving Australia - Partial Award

20 Jan 2007

CAS 2007/A/1201 Nathan Baggaley vs Australian Canoeing, International Canoe Federation & Surf Life Saving Australia

The Application before us was filed with the Court of Arbitration for Sport (CAS) Oceania Registry on 4 January 2007, it being what is commonly seen as and entitled, an Application. It has the effect of being a Statement of Appeal under Rule 48 of the Court of Arbitration for Sport Arbitration Rules, edition 2004 (the Code). There was also filed with the CAS Oceania Registry on 15 January 2007 an Amended Application form.

One of the paragraphs of the Order for Directions given in this matter dealt with the jurisdiction of the presently constituted Panel. That order was signed and executed by the Appellant (Mr Baggaley), the respondent, Australian Canoeing Inc. (ACI), and by the then affected parties, Surf Life Saving Australia (SLSA), Australian Sports Commission (ASC) and Australian Sports Anti-Doping Authority (ASADA). The order was not executed by or on behalf of the then respondent, International Canoe Federation (ICF) which submitted in substance that this Panel did not have authority to arbitrate the dispute alleged against the ICF. Consequently, there arose at the very beginning of these proceedings the question as to whether this Panel had jurisdiction to entertain the Application, being in the nature of appeal, and specifically to make orders of the specific nature sought in the Application.

Therefore, we have concluded that there is no jurisdiction in the Panel to make orders of the nature sought by Mr Baggaley against the ICF, it being a respondent to the appeal before us.

For those reasons, we conclude that the jurisdictional point taken by and on behalf of the ICF is sound and we uphold the submission.

CAS 2006_A_1168 Nathan Baggaley vs ICF

29 Dec 2006

CAS 2006/A/1168 Baggaley v/International Canoe Federation

Inherent powers of CAS
Interpretation of the CAS Rules
Interpretation of “Appeal” in the CAS Rules
Time limit to lodge a Statement of Appeal
Beginning of the time limit to appeal

1. The CAS is an arbitral body not a court of law. It does not possess any inherent powers nor any discretion, afforded by Rules of Court, to control its own processes or to unilaterally vary, adjust or waive the requirements of the contract by which the parties and the CAS have agreed to be bound and which relevantly finds expression in the Code of Sports-related Arbitration.

2. All of the CAS Rules, and each individual Rule must be construed in their context and, in particular, in the context of the Rules as a whole. Furthermore, the CAS Rules must be construed in a practical, sensible and reasonable fashion to give practical effect to them and no provision should be regarded as otiose, redundant or superfluous unless such a conclusion is rendered necessary by a consideration of the Rules as a whole.

3. The expressions “Appeal” and “Statement of Appeal” in art. R47 to R49 of the Code of Sports-related Arbitration are intended to be read as synonyms and as interchangeable expressions. To construe the Rules otherwise would be to make a nonsense of the exception set out in art. R32 or at least render it otiose or superfluous.

4. In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of a previous agreement, a Statement of Appeal shall be lodged by an appellant within 21 days of the receipt of the decision appealed against.

5. In order for a Tribunal to be able to determine whether or not the previous instance decision is reasoned, written or timely, the appeal itself must be timely. If the CAS were to hold that time only starts to run when a decision is timely, written and reasoned, such criteria would make it impossible for a potential Appellant to objectively determine when time starts to run.

By an Application Form dated 11 October 2006 the Appellant, Mr Nathan Baggaley lodged an appeal against a decision of the Respondent, the International Canoeing Federation (‘ICF’), handed down on or shortly before 15 March 2006 whereby the ICF decided to suspend the Appellant for a 2-year period from all International Competitions in the sport of canoeing, commencing on 13 September 2005. The ICF is the peak world body controlling or administering the sport of canoeing.

The Panel concludes that this Appeal was filed out of time and must be deemed inadmissible by reason of R48 and R49 of the CAS Rules. It gives the Panel no pleasure in deciding this matter on such a technical basis. As we have said, we do not think it appropriate to express any concluded view at all on the merits of the substantive decisions but it would have been far preferable that this Appeal had been determined on such merits.

In reaching the decision which it has, the Panel does not wish in any way to suggest that it is in any way giving its seal of approval to the ICF’s decision of March 2006 or the circumstances in which it is made. Neither the ICF nor any similar organisation should regard this Award as supporting the notion that it can make decisions such as the one made here in March 2006 without giving the relevant Athlete a fair hearing and without providing a timely and reasoned decision.

The Court of Arbitration for Sport decides on 29 December 2006 that:

1.) The appeal filed by Mr Nathan Baggaley on 11 October 2006 against a decision of the International Canoe Federation is inadmissible.
2.) The question of costs is reserved.

CAS 2009_A_1752 Vadim Devyatovskiy & Ivan Tsikhan v IOC

10 Jun 2010

CAS 2009/A/1752 Vadim Devyatovskiy v/ IOC
CAS 2009/A/1753 Ivan Tsikhan v/ IOC

CAS 2009/A/1752 Vadim Devyatovskiy v. International Olympic Committee (IOC) & CAS 2009/A/1753 Ivan Tsikhan v. IOC

Athletics (hammer throw)
Doping (testosterone)
Substantial change regarding the allocation of the burden of proof in the IOC ADR 2008
Resolution of conflicts on the basis of the tempus regit actum and contra preferentem principles
Interruption of the automated testing procedure and transparency of the testing process
Refusal to disclose validation studies and consequences on the burden of proof of the athletes
Strict observation of the mandatory safeguards and strict liability for doping offences

1. The allocation of the burden of proof and the standard of proof to be applied have essential significance in doping cases. In its adoption of the IOC ADR 2008, the IOC chose to deviate from the language of Art. 3.2.1 of the WADC 2003. It amended the language of previously governing Art. 3.2.1 in order to reverse the burden of proof from the IOC to the athlete to show that the departure from the ISL could have reasonably caused the Adverse Analytical Finding. Accordingly, in addition to being charged with the burden of showing that a departure from the ISL has occurred as required under the WADC 2003, the athlete is now forced to bear the burden of proof to establish that the departure had not only occurred, but also that it had reasonably caused the Adverse Analytical Finding. This is a substantial change from the burden of proving the mere fact of a departure from the ISL.

2. The WADC 2003 and the IOC ADR 2008 do not foresee how the conflict in the contradictory wording of their provisions is to be resolved. The doctrine that an accused party can be tried and sanctioned only under the laws which governed at the time the offending act was committed, the exception being the principle of lex mitior, is a fundamental principle of law which is accepted by the majority of national jurisdictions, including Switzerland. Contradictions in the applicable rules must be interpreted contra proferentem, i.e., to the detriment of the promulgator of the conflicting or contradictory provision. This view is supported by international judicial practice.

3. The purpose of the relevant procedural safeguards set down in the ISL and the Technical Documents is (1) to heighten caution and care in the movements of the analysts while conducting the analysis and (2) to provide the athlete the documentary basis upon which he can ensure the correctness and accuracy of the testing procedure. If a Technical Document provides that, with regard to aliquots, the Laboratory Internal Chain of Custody should record all movement from preparation through analysis, the interruption of the automated testing procedure of the instrument for the purpose of manually exchanging aliquot fractions in a given slot of the auto-sampler constitutes a “movement” which needs to be recorded in the appropriate document. This directive is obviously intended to provide a procedural safeguard ensuring the accountability and control of the run. By “cutting and pasting”, by manually re-constructing the original Sequence List in such a manner that its deviation from the original would not be noticed, the laboratory analyst violates a fundamental safeguard which ensures transparency to the testing process and its authenticity.

4. Although a laboratory must be given certain discretion in the disclosure of its validation studies required for accreditation by WADA, in case where the athletes have focused their request for information upon a specific item of reference and the laboratory chose not to furnish the specific information requested, it cannot place the athletes at a procedural disadvantage in bearing their burden of proof, where the evidence requested is critical to their defence and the laboratory remains in exclusive control of its disclosure.

5. Doping is an offence which requires the application of strict rules. If an athlete is to be sanctioned solely on the basis of the provable presence of a prohibited substance in his body, it is his or her fundamental right to know that the Testing Authority, including the WADA-accredited laboratory working with it, has strictly observed the mandatory safeguards. Strict application of the rules is the quid pro quo for the imposition of a regime of strict liability for doping offenses.

The Appellants took part in the Men’s Hammer Throw Competition at the Summer Games of the XXIX Olympiad in Beijing, 2008.

Following a doping control performed immediately after the competition, the Beijing National Laboratory, a WADA-accredited laboratory responsible for the analysis of the samples reported that both Athletes had tested positive for testosterone.
Accordingly on 11 December 2008 the IOC Disciplinary Commission decided to disqualify the two Athletes including forfeiture of their medals, diplomas and results.

Hereafter both Athletes appealed the IOC's decision with the Court of Arbitration for Sport (CAS).

In the case of both Athletes, the Panel has established violations of the Laboratory's documentation and reporting requirements of ISL and in conjunction with WADA Technical Document TD2003LCOC, in addition to a violation of the “Different Analysts” rule set out in ISL Here the Panel holds that the transparency of the test analysis is denied to the Athletes. Verification of the test results is not possible. In the case at hand, transparency and verification of the testing process represent fundamental rights of the athlete. In the view of the Panel the violation of which, independently of each other, justifies the annulment of the test results.

The Panel wishes to emphasize that its decision should not be interpreted as an exoneration of the Athletes. The Panel is not declaring that the Appellants did not, prior to the competition, administer exogenous testosterone. The Panel is merely concluding that the Respondent has not been able to prove, to the comfortable satisfaction of the Panel, diligent adherence to the rules set out in the International Standard for Laboratories and the relevant Technical Documents.

The Court of Arbitration for Sport decides on 10 June 2010:

1.) The appeals filed by Vadim Devyatovskiy and Ivan Tsikhan are upheld.
2.) The Decisions of the IOC Disciplinary Commission dated 11 December 2008 regarding the Athletes Vadim Devyatovskiy and Ivan Tsikhan are set aside.
3.) The medals and diplomas awarded to the Appellants are to be returned to them.
4.) All other motions or prayers for relief are dismissed.

CAS 2011_A_2658 British Olympic Association (BOA) vs WADA

30 Apr 2012

CAS 2011/A/2658 British Olympic Association (BOA) v. World Anti-Doping Agency (WADA)

This Award concerns a Bye-Law that the BOA adopted about twenty years ago and has been amended several times since; the most recent version is in force since 1 January 2009. The Bye-Law essentially provides that any British athlete “who has been found guilty of a doping offence … shall not … thereafter be eligible for consideration as a member of a Team GB or be considered eligible by the BOA to receive or to continue to benefit from any accreditation as a member of the Team GB delegation for or in relation to any Olympic Games, any Olympic Winter Games or any European Olympic Youth Festivals” (the “Bye-Law”). WADA challenged the Bye-Law following and on the basis of an award of the Court of Arbitration for Sport (“CAS”) issued by a panel on 4 October 2011: U.S. Olympic Committee v. International Olympic Committee, CAS 2011/O/2422 (the “USOC Award”). The USOC Award, which is described in more detail below, considered the validity of a rule of the International Olympic Committee according to which “any person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate … in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension” (the “IOC Regulation”). The USOC Award held that the IOC Regulation was invalid and unenforceable because it violated Article 23.2.2 of the WADA Code, which provides that a Signatory must implement enumerated Articles of the Code “without substantive change” and that no Signatory to the WADA Code may “add additional provisions” to its rules “which change the effect of …” the enumerated Articles. The IOC Regulation was found to have changed the substance of the sanctions imposed in the WADA Code. After the USOC Award was issued, the WADA Foundation Board reviewed at its 20 November 2011 meeting in Montréal, Canada, a document entitled “WADA Compliance Report” (the “Compliance Report”) and available at the website of WADA. The Compliance Report, under the heading “National Olympic Committees”, stated the following: The BOA’s non-compliance is based on the Court of Arbitration for Sport (CAS) decision of October 4, 2011 that advised the International Olympic Committee (IOC) that its Rule 45 was noncompliant because it was, in effect, a double sanction. In light of this ruling, the BOA’s bye-law number 74 [sic: 7.4] renders the BOA noncompliant. Therefore, in a letter dated 21 November 2011, WADA advised the BOA “… that the British Olympic Association has been determined to be non-compliant with the (WADA) Code because your rule on selection for the Olympic Games is an extra sanction, and non-compliant for the same reason the IOC eligibility rule was deemed non-compliant by the Court of Arbitration for Sport”. This determination constitutes the decision against which BOA appeals in this proceeding (the “Decision”). As noted above, the Bye-Law has been in effect for about twenty years, including for more than 10 years before the WADA Code was introduced in March 2003. The current revised version of the Bye-Law has been in effect since 1 January 2009. The present Bye-Law, titled “Bye-Law of the National Olympic Committee: Eligibility for Membership of Team GB of Persons Found Guilty of a Doping Offence” contains six recitals and reads, in part, as follows: Any person who has been found guilty of a doping offence either (i) by the National Governing Body of his/her sport in the United Kingdom; or (ii) by any sporting authority inside or outside the United Kingdom whose decision is recognised by the World Anti-Doping Agency (a “Sporting Authority”) shall not, subject as provided below, thereafter be eligible for consideration as a member of a Team GB or be considered eligible by the BOA to receive or to continue to benefit from any accreditation as a member of the Team GB delegation for or in relation to any Olympic Games, any Olympic Winter Games or any European Olympic Youth Festivals.” . . . Paragraphs 2 through 7 provide for the establishment of an Appeals Panel (“AP”) and the procedures to be followed “to consider any appeal by a person made ineligible pursuant to paragraph 1 above”. Since March 1992, a number of British athletes have been ineligible for selection for the Olympic Games as a result of the Bye-Law. Leaving aside equine cases relating to the doping of horses, to date there have been 25 appeals under the procedures described in paragraphs 2 through 7 of the Bye-Law. All but one of the 25 athletes who appealed the effect of the Bye-Law have been successful in having the application of the Bye-Law ameliorated. Two athletes4 affected by the Bye-Law never activated the AP process, and one5 was unsuccessful in commencing the AP process. Prior to the hearing in this matter, the most recent oral hearing in a non-equine appeal under the Bye-Law had been that of Christine Ohuruogu (“Ohuruogu”). In December 2007, Ohuruogu had received a one-year ban for a third missed doping control test. Ohuruogu successfully invoked the Bye-Law appeal process, so she could represent the country as part of Team GB after her one year ban was served. As part of the implementation of the 2009 version of the WADA Code, each National Olympic Committee (“NOC”) had to present to WADA its WADA Code compliant anti-doping rules. On 11 February 2008, the BOA submitted to WADA a draft of its anti-doping rules, which included a reference to the Bye-Law. In a letter dated 3 March 2009, WADA advised the BOA that: “… the Rules are in line with the 2009 World Anti-Doping Code. This correspondence therefore constitutes your assurance that the Rules are in line with the 2009 World Anti-Doping Code”. Therefore, on 11 March 2009, the BOA accepted the revised 2009 WADA Code as a Signatory. On that day, the BOA adopted a “Bye-Law Relating to Anti-Doping” (the “Anti-Doping Bye-Law”). The Anti-Doping Bye-Law refers to and incorporates in Rule 7.4 the Bye-Law under consideration in this matter in the following manner: “Any Person who is found to have committed an Anti-Doping Rule violation will be ineligible for membership or selection to the Great Britain Olympic Team or to receive funding from or to hold any position with the BOA as determined by the Executive Board in accordance with the BOA’s Bye-Law on Eligibility for future membership of the Great Britain Olympic Team.” From March 2009 until the USOC Award of 4 October 2011 was issued, both Parties acted under the presumption that the Bye-Law was not contrary to the WADA Code. However, in a letter dated 7 October 2011, the day following the publication of the USOC Award, WADA wrote to the BOA about the impact of that award. WADA stated that it had previously viewed the Bye-Law as being a selection policy and not an anti-doping rule and therefore not falling within the scope of the WADA Code. This position had been consistent with WADA’s view that Rule 45 of the Olympic Charter had been considered by the IOC to be an ineligibility rule and not a sanction. However, WADA elaborated that because the USOC Award “has determined Rule 45 to be non-compliant with the Code, [i]t is possible that your selection policy [i.e. the Bye-Law] now falls into the same category”. WADA invited the BOA to consider the Bye-Law in light of the USOC Award. Following this letter, there was various correspondence between the BOA and WADA, in which the BOA took the position that the Bye-Law was a selection policy and neither a rule of ineligibility nor a sanction, and that it therefore did not fall within the scope of the WADA Code. The BOA also noted that, as WADA had itself noted in its 7 October 2011 letter, WADA had previously found the Bye-Law to be compliant with the WADA Code. As noted above, on 20 November 2011, the WADA Foundation Board found that the Bye-Law was not compliant with the WADA Code, and WADA so advised the BOA on 21 November 2011.

CAS 2009_O_1824 IOC

11 Jun 2009

Avis Consultatif TAS 2009/C/1824 CIO
CAS 2009/O/1824 IOC

To confront former offenders-and in so doing preventing potential future offenders from participating in the Olympic Games, the IOC Executive Board enacted at its meeting in Osaka (Japan) the following rule which came to be known as the “Osaka Rule” on June 27 20081:
“The IOC Executive Board, in accordance with Rule 19.3.10 OC and pursuant to Rule 45OC, hereby issues the following rules regarding participation in the Olympic Games:
1.) Any Person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension.
2.) These Regulations apply to violations of any anti-doping regulations that are committed as of 1 July 2008. They are notified to all International Federations, to all National Olympic Committee and to all Organizing Committees for the Olympic Games.”

However on 4 October 2011 the CAS Panel rendered its decision in the case CAS 2011/O/2422 USOC v. IOC about the validity of the “Osaka Rule”.
The Panel declared “the IOC Executive Board’s 27 June 2008 decision prohibiting athletes who have been suspended for more than six months for an anti-doping rule violation from participating in the next Olympic Games following the expiration of their suspension […] invalid and unenforceable.”

Hereafter in April 2009 the IOC requested CAS for an Advisory Opinion (CAS 2009/C/1824 IOC) about the “Osaka Rule”.
The CAS Panel found in their Advisory Opinion the regulation to be valid because it was not a “sanction rule” but an “entry rule” that in effect only prevented athletes from competing in an “event” - the Olympic Games - which is wholly controlled by the IOC. As support for its “entry rule” determination, the Panel pointed to previous IOC decisions to exclude or permit other groups from the Olympic Games, such as professionals. The Panel reasoned that the IOC was not issuing a “sanction” but was instead opting not to accept the registration of a group of athletes, those suspended for more than six months for doping, at the Olympic Games.

CAS OG_2000_06 Dieter Baumann vs IOC, National Olympic Committee of Germany & IAAF

22 Sep 2000

CAS ad hoc Division (O.G. Sydney) 00/006 Dieter Baumann / International Olympic Committee (IOC), National Olympic Committee of Germany and International Amateur Athletic Federation (IAAF)

Doping (nandrolone)
Removal of accreditation for the Olympic Games
CAS jurisdiction
Principle of res judicata
De novo hearing

1. By reason of their commitment to the Olympic Movement and their participation in the Olympic Games, the IFs must be deemed to have subscribed to the arbitration clause in the Olympic Charter.

2. A res iudicata defence can only succeed if the parties and the subject matter of the new dispute are the same as in the former action.

The Deutscher Sportbund e.V. (the German Sports Association, the “DSB”) held a without warning out of competition control test on 19 October 1999. The test was carried out on Mr. Dieter Baumann (the “Athlete”) while he was at training. The analysis of the A-sample in the IOC laboratory in Kreischa showed the following result: 19-norandrosteron 23.2 ng/ml and 19 noretiocholanolon 5.1 ng/ml. The B-sample test was norandrosteron 20.7 ng/ml. On 15 November 1999, the DSB arranged for another test to be carried out on the Athlete without giving warning. The analysis of the A-sample in the IOC laboratory Cologne shows the following result: 19 norandrosteron 24 ng/ml. The B-sample test was 26 ng/ml. The Athlete was given a hearing before the Anti-Doping Commission of the Deutscher Leichtathletikverband e.V. (the “DLV”). On 19 November 1999, the Anti-Doping Commission of the DLV temporarily suspended the Athlete on the grounds of a suspected doping offence. On 29 and 30 November 1999, employees of the IOC laboratory in Cologne took food substitutes and cosmetics from the Athlete’s home for the purpose of examining them and to locate a possible source for the positive findings. On 1 December 1999, an examination of a tube of toothpaste of the brand “Elmex” taken from the Athlete’s house revealed that the toothpaste contained norandrostendion. On 1 December 1999, an excretion test with a test person in the IOC laboratory in Cologne showed a positive finding in respect of nandrolon-metabolites after a specially prepared toothpaste containing norandrostendion had been used (Analysis of Prof. Dr. W. Schänzer, 2 December 1999). On 2 December 1999, the Athlete reported the commission of an offence by persons unknown to the Tübingen public prosecutor’s office. He claimed that his toothpaste had been manipulated. The public prosecutor’s office commenced an investigation. On 7 December 1999, while searching the Athlete’s house the police found a tube of toothpaste of the brand “Signal” in a sport bag in the basement. An examination of it showed that the toothpaste contained norandrostendion. On 30 May 2000, the Tübingen public prosecutor’s office discontinued the investigative proceedings started by the Athlete on the basis that no criminal involvement by a third party could be established. On 23 June 2000, the Rechtsausschuss (Legal Committee) of the DLV removed the Athlete’s suspension on the grounds that the necessary suspicion for a doping offence did not exist. On 13 July 2000, the Athlete was cleared by the Legal Committee of the DLV in respect of the doping suspicions. On 11 August 2000, a “Notice of Referral to Arbitration and Statement of the IAAF” was received by the DLV.
In August 2000, the Athlete was nominated by the NOC as a member of the German Olympic Team. On 30 August 2000, the Regional Court of Stuttgart granted an interim order against the IAAF on the application of the Athlete. Pursuant to such order the IAAF was prohibited under penalty of up to DM 500’000 for each breach from placing a competition ban on the Athlete until the end of the Olympic Games 2000 in Sydney.

CAS 2008_A_1545 Anderson, Colander Clark, Miles-Clark, Edwards, Gaines, Hennagan, Richardson vs IOC - Partial Award

18 Dec 2009

CAS 2009/A/1545 Andrea Anderson, LaTasha Colander Clark, Jearl Miles-Clark, Torri Edwards, Chryste Gaines, Monique Hennagan, Passion Richardson v/IOC

3. The background facts stated herein constitute a brief summary of the main relevant facts, as established on the basis of the parties' written submissions, set forth for the sole purpose of this partial award. Additional facts will be set out, where material, in connection with the discussion of the parties' factual and legal submissions.
4. On 30 September 2000, during the Sydney Olympics, the finals of the women's 4x100 meters and 4x400 meters relay track and field races took place.
5. The Athletes, together with Ms Marion Jones (hereinafter also "Ms Jones"), were the members of the U.S. women relay teams for these races.
6. The U.S. women relay teams won the bronze and gold medals for the 4x100 meters race and the 4x400 meters race respeetively.
7. The closing ceremony of the Sydney Olympic Games took place on 1 October 2000.

CAS 2004_A_714 Robert Fazekas vs IOC

31 Mar 2005

CAS 2004/A/714 F. v. International Olympic Committee (IOC)

Related case:
IOC 2004 IOC vs Robert Fazekas
August 24, 2004

  • Athletics
  • Olympic Games
  • Failure to submit to sample collection
  • Validity of the sample collection procedure
  • Doping offence

1. The presence of two witnesses (instead of one) cannot be invoked as a circumstance invalidating the entire doping sample collection procedure. According to the Rules in force, the sample collection cannot take place without the testimony of at least a witness, but the presence of two witnesses is not prohibited and is not a reason for the invalidity of the procedure. In the same way, no rule provides for the presence of a representative of the athlete at the moment the athlete passes the sample. As a result, the fact that no representative assisted the Athlete while passing the urine cannot be invoked as an irregularity affecting the validity of the sample collection procedure.

2. The athlete’s failure to provide a full urine sample cannot be excused by an alleged ignorance or inapplicability of the anti-doping rules in force at the Athens Games. It is undisputed that a full sample of 75ml was not provided. The IOC can therefore be held as having proved that a failure to submit to sample collection has occurred. The burden to prove that a compelling justification for such failure existed lies on the athlete: the “aggressive” conduct of the doping control staff resulting in a “psychological trauma” during the doping control procedure justifying the production of an insufficient sample, has not been established, and cannot be invoked as an excuse not to continue the sample collection procedure.

3. When no compelling justification for failing to submit to doping control exists, the Athlete has therefore committed an anti-doping rule infringement.

Mr. Robert Fazekas is a Hungarian Athlete competing in the men’s discus throw event at the Athens 2004 Olympic Games.

On 24 August 2004 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after he refused or failed to provide a sample for doping control.
After notification the Athlete filed a statement in his defence and was heard for the IOC Disciplinary Commission.

Despite several attempts the Athlete could provide on 24 August 2004 only a (partial) sample of 25 ml of urine. The athlete stated that he decided to finish the procedure because he did not feel well. The athlete was given the opportunity to continue the sample collection at the polyclinic where medical treatment could be given to him but the athlete did not accept.

The IOC Disciplinary Commission unanimously concluded that the Athlete Mr Robert Fazenas had committed a doping offence pursuant to Article 2.3 of the Rules in that he had refused or failed to submit to sample collection.

On 24 August the IOC Executive Board, as recommended by the IOC Disciplinary Commission, decides that the Athlete:
1.) is disqualified from the men’s discus throw event, where he had placed first;
2.) is not awarded a gold medal or diploma;
3.) is excluded from the Games of the XXVIII Olympiad in Athens in 2004; and
4.) shall have his Olympic identity and accreditation card withdrawn.
5.) The International Association of Athletics Federations (IAAF) is requested to modify the results of the above-noted event accordingly and to consider any further action within its own competence.
6.) This decision shall enter into force immediately.

Hereafter on 13 September 2004 the Athlete Appealed the IOC decision of 24 August 2004 with the Court of Arbitration for Sport (CAS). The Athlete requested that the decision taken by the Executive Board of the International Olympic Committee on 24.08.2004 be annulled in all counts and to award the gold medal to the Athlete for placing first.

The Appellant submits that he “rescinded” his consent to go to the Polyclinic when it became clear that the same two witnesses (that attended to the unsuccessful attempts at the Stadium) would accompany him; and also because he had been reassured (by an unnamed woman) that the partial sample was sufficient for testing.

The CAS Panel rules that the submissions of the Appellant cannot be accepted. The Panel, in fact, confirms that, pursuant to the applicable guidelines, the doping control officers present at the doping control station had the right to accompany the Athlete to the Village Polyclinic.

In addition, the Panel remarks that the Athlete at the hearing admitted that at the end of the procedure he was rather calm, and that he was perfectly aware of the consequences of his decision not to go to the Village Polyclinic. Finally, the Panel stresses that the Athlete could not rely on any declaration, by whomsoever made, as to the sufficiency of 25ml for testing, while it was all the way clear that he had to provide a quantity of 75ml of urine.

In the light of the foregoing, the Panel holds that the appeal has to be dismissed and the IOC Decision of 24 August 2004 has to be confirmed.

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