CAS 2008/A/1461 Gatlin v/ USADA
CAS 2008/A/1462 lAAF v/ USATF & Gatlin

CAS 2008/A/1461 Justin Gatlin v. United States Anti-Doping Agency (USADA)

CAS 2008/A/1462 IAAF v. USA Track & Field (USATF) & Justin Gatlin

Related cases:

• AAA 2001 No. 30 190 00546 01 USADA vs Justin Gatlin
  May 1, 2002
• AAA 2007 No. 30 190 00170 07 USADA vs Justin Gatlin
  December 31, 2007
• AAA 2007 No. 30 190 00170 07 USADA vs Justin Gatlin - Dissenting Opinion
  December 31, 2007

• Athletics
• Doping (amphetamines)
• Application of the World Antidoping Code
• Fault of the athlete
• Reduction of the sanction based on exceptional circumstances

1. The WADA Code does not apply as between a signatory organization and its members, unless the signatory organization has expressly incorporated the WADA Code into its own relevant rules. If only some provisions of the WADA Code have been incorporated into the own rules of the signatory organization, the WADA Code is not directly applicable to the case at stake.

2. If, under the IAAF Rules, a doping offense is a strict liability offense, fault is not a part of determining whether or not an offense was committed.

3. If the sanction to be imposed is based on the existence of two antidoping violations, the circumstances surrounding both violations must be taken into account when determining whether there are exceptional circumstances for the purposes of determining the period of ineligibility.

In May 2002 a sanction of 2 years was imposed on the Athlete Justin Gatlin related to the prescribed medication he used as treatment for his Attention Deficit Disorder.

On 3 July 2002 the lAAF Council granted the request for early reinstatement on the basis that it believed that Mr. Gatlin had a genuine medical explanation for his positive result. The effect of this reinstatement was that the Athlete served a provisional suspension of almost one year.

In May 2006 the United States Anti-Doping Agency (USADA) reported a second anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance Testosterone.

Consequently on 31 December 2007 the North American Court of Arbitration for Sport Panel (AAA) decided to impose a 4 year period of ineligibility on the Athlete. Hereafter in both the Athlete and the IAAF appealed the AAA Panel decision with the Court of Aribitration for Sport (CAS).

Undisputed in this appeal is that Mr. Gatlin’s positive test in 2006 constitutes an anti-doping rule violation. The main issue before this Panel is what ought to be the sanction for the 2006 Violation. The other important issue is what ought to be the start date for the sanction.

Following assessment the Panel concludes that the 2006 Violation was the Athlete's second anti-doping rule violation. Futhermore the invoked Americans with Disabilities Act does not prevent this Panel from imposing a sanction on the Athlete.

The CAS Panel finds that the totality of the circumstances surrounding the Athlete's 2001 case are such that they constitute exceptional circumstances for the purposes of determining the period of ineligibility. The Panel therefore decides that Mr. Gatlin’s period of ineligibility is to be four years.

Therefore the Court of Arbitration for Sport decides on 6 June 2008:

1.) The appeal filed by Mr Justin Gatlin on 21 January 2008 is rejected.

2.) The appeal filed by the IAAF on 23 January 2008 is upheld in part.

3.) The decision of the American Arbitration Association dated 31 December 2007 is amended by altering the commencement date of the period of ineligibility from 26 May 2006 to 25 July 2006 when Mr Justin Gatlin voluntarily accepted a provisional suspension.

4.) The decision of the AAA Panel is further amended by cancelling all of Mr. Gatlin’s competition results from the date of the sample collection on 22 April 2006 until the commencement of the period of ineligibility set out in paragraph 3 above.

5.) The balance of the decision of the AAA Panel will remain unaltered and the period of ineligibility of four years is confirmed.

(…)

Arbitrage Chambre ad hoc du TAS (JO Londres) 12/009 Nour-Eddine Gezzar c. Fédération Française d’Athlétisme (FFA)

CAS OG 12/09 M. Nour-Eddine Gezzar & Féderation Française d'Athlétisme (FFA)

Athletics (middle distance)
Request for suspension of the contested decisions and readmission to the Olympic Games
Competence rationae personae of CAS
Conditions for suspension of the execution of a sanction rationae personae vis-à-vis these entities

1. National Federations sending their athletes to the Olympic Games are subjected to the provisions of the Olympic Charter, including the arbitration clause therein. The National Olympic Committees (NOCs) and the International Federations (IFs) are also subjected to the Olympic Charter. As a consequence, the CAS Ad Hoc Division is competence rationae personae vis-à-vis these entities.

2. In order to decide whether or not to suspend the execution of a sanction, the following should be taken into consideration:
(i) Whether the plaintiff is liable to serious and irreparable damage;
(ii) When the plaintiff establish prima facie reasonable chances of success; and
(iii) When interest prevails of the plaintiff liable to damage over the party that is liable to maintain the status quo.
These conditions are in principle cumulative, however CAS must have the necessary latitude to assess the overall situation using the above three criteria, while it is not necessary or useful to provide strict conditions which could create more difficulties than the actual legal certainty.

The ad hoc Division of the Court of Arbitration for Sport (CAS) rejected the urgent application filed by the French runner Nour-Eddine Gezzar (3000m steeple) who was challenging the provisional suspension which had been imposed on him by the French Athletics Federation (FFA) further to a positive doping test with EPO at the French Championships on 17 June 2012.

The decision of temporary suspension was issued by the FFA on 12 July 2012 and confirmed on 25 July 2012, then was confirmed again by the IAAF on 27 July 2012, which immediately extended it at the international level. Nour-Eddine Gezzar had been then removed from the French Athletics team for the London Olympics and his accreditation had been removed by the French NOC.

The athlete contended that some errors have been committed during the anti-doping control procedure and requested to be readmitted in the start list of the 3000m steeplechase heats of 3 August 2012.

The CAS Panel concludes that the athlete did not provide sufficient elements to persuade the Panel to lift the provisional suspension pronounced by the FFA and confirmed by the IAAF.
Therefore on 3 August 2012 the CAS Panel decides to reject the application of Nour-Eddine Gezzar,

CAS 2002/A/383 IAAF vs CBAt & Dos Santos

In May 2001 the IAAF has reported an anti-doping rule violation against the Athlete Ms. dos Santos after her samples tested positive for the prohibited substance testosterone with a T/E ratio above the WADA threshold. The Atlhlete's samples were collected in May 2001 in Brazil and in June 2001 in Spain and tested in the Laboratories in Montreal, Madrid and Cologne.

Considering the findings of the Laboratories and the opinion of experts the IAAF concluded that the positive findings of the samples provided in Brazil were "related to application of exogenous androgenic steroids and not to a pathological of physiological condition".
However the CBAt Sports High Court placed great weight on the evidence of an expert witness and found that there was doubt about the reliability of the B sample results and decided on 11 March 2002 to absolve the Athlete.

Hereafter in May 2002 the IAAF appealed the CBAt Sports Hight Court decision with the Court of Arbitration for Sport (CAS).

The CAS Panel finds that:
1.) a prohibited substance, testosterone, was present in the body of Ms. dos Santos,
2.) the presence of this prohibited substancej in and of itself, constitutes "doping" within the meaning of IAAF Rule 55.2,
3.) this is the Athlete's second doping offence,
4.) pursqant to IAAF Rule 60.2, the sanction of “ineligibility for life” automatically applies in the case of a second doping offence, and, therefore,
5.) the CBAt Sports High Court "reached erroneous conclusion" within the meaning of IAAF Rule 22.3 when it absolved M. dos Santos of a doping offence in its decision dated 11 March 2002.

For all of the above reassons, the Panel therefore concludes on 27 January 2003 unanimously that this appeal must be granted and that the decision of the CBAt Sports High Court dated 11 March 2002 must be overturned and replaced by a declaration that Ms. Dos Santos is guilty of a doping offence and thus ineligibility for life.

CAS 2010/A/2162 Doping Control Centre, Universiti Sains Malaysia v. World Anti-Doping Agency (WADA)

Doping
Revocation of a laboratory’s accreditation
CAS power of review
Duty of a first instance body to act fairly
Standard of proof
Duty of a laboratory to be aware of and implement all WADA technical documents
Absence of harm
Duty of a laboratory to operate and be seen to operate according to implemented standards

1. The reference in art. R57 of the Code to the power to review the facts and law does not refer to the facts and law that were before the body producing the original decision. The facts and law referred to are rather those which bear on the issues in the appeal: CAS is restricted only by the subjective and objective limits of the case remitted to it. Any more limited interpretation would have the potential to create unfairness for both parties, by disabling an appellant as well as a respondent from adducing fresh relevant material before CAS. It would also place an obstacle in the path of sensible and speedy resolution of a dispute which is particularly desirable in the world of sport.

2. The fact that a first instance body’s decision may be cured by the appeal to CAS does not have as its corollary an absence of requirement for such first instance body to act fairly. It is obliged to obey the two basic rules of natural justice audi alteram partem and nemo judex in causa sua i.e. to let the party to know the case against it and to give it an opportunity to respond; and to have the issue determined by a body that both is and is seen to be impartial and independent. Failure to comply with these fundamental principles may incite the recipient of an adverse decision to appeal when it might not otherwise have done so. It also deprives the decision (and its reasoning) of such utility it might otherwise have by way of guidance for the CAS Panel in its appellate capacity. Moreover, it risks undermining the stature of the first instance body itself.

3. In a novel situation which does not concern a usual disciplinary case of a doping offence engaging the established test of “comfortable satisfaction”, it must be determined precisely what standard of proof should apply. It is not appropriate to assess whether a laboratory deserves revocation of accreditation in purely quantitative terms. The assessment must also be a qualitative one. Therefore, it is for a panel to decide on the balance of probabilities that the decision to revoke was wrong: WADA’s judgment must itself be accorded due deference, but the panel must nonetheless be persuaded that in all the circumstances, revocation is necessary to ensure the full reliability and accuracy of testing and the reporting of the same.

4. It is indisputable that a laboratory has an obligation to be aware of and implement all WADA technical documents. The plea of ignorance of the existence of key documentation because of technical or administrative problems faced by the laboratory aggravates rather than mitigates the offence.

5. The causation of loss by inappropriate actions is relevant to civil claims for compensation but not to disciplinary (or criminal) charges where it is the degree of fault and not its consequences which is relevant. Therefore, a plea that no harm was done by the errors is without weight.

6. The entire anti-doping system presupposes that, and can only work if, WADA-accredited laboratories actually operate in accordance with the International Standard for Laboratories and in accordance with their own Standard Operating Procedures. The credibility of the system also requires that laboratories be seen to operate in accordance with these standards: any doubts about one laboratory could very quickly jeopardise the entire system.

The Court of Arbitration for Sport decides on 15 June 2011:

1.) The appeal filed by Doping Control Centre, Universiti Sains Malaysia on 8 July 2010 is dismissed.
(…)
4.) All other and further prayers for relief are dismissed.

Tsitsimpikou C, Chrisostomou N, Papalexis P, Tsarouhas K, Tsatsakis A, Jamurtas A.
Int J Sport Nutr Exerc Metab. 2011 Oct;21(5):377-84

Although the use of nutritional supplements by professional athletes and the benefits thereof have been extensively studied, information on recreational athletes' use of supplements is limited. This study investigated the consumption of nutritional supplements, source of information and supply of supplements, and level of awareness with regard to the relevant legislation among individuals who undertake regular exercise in Athens, Greece. A closed-ended, anonymous questionnaire was answered by 329 subjects (180 men, 149 women), age 30.6 ± 12.1 yr, from 11 randomly selected gym centers. Preparations declared as anabolic agents by the users were submitted to a gas chromatographic analyzer coupled to a mass spectrometric detector. Consumption of nutritional supplements was reported by 41% of the study population, with proteins/amino acids and vitamins being the most popular. Age (r = .456, p = .035), sex (χ2 = 14.1, df = 1, p < .001), level of education (χ2 = 14.1, df = 3, p < .001), and profession (χ2 = 11.4, df = 4, p = .022) were associated with the subjects' decision to consume nutritional supplements. Most (67.1%) purchased products from health food stores. Only 17.1% had consulted a physician or nutritionist, and one third were aware of the relevant legislation. Two preparations were detected containing synthetic anabolic steroids not stated on the label. In conclusion, use of nutritional supplements was common among recreational athletes in Athens, Greece. A low level of awareness and low involvement of health care professionals as sources of information and supply were observed.

Facts
The Royal Dutch Athletics Association (Koninklijke Nederlandse Atletiek Unie, KNAU) reported a violation of the Anti-doping Code (ADC). His urine sample taken during a doping test was positive for the a metabolite of stanozolol which is on the list or prohibited substances. Also the B sample tested positive.

History
The athlete was unaware of the cause of contamination. He had sent a few products for testing to the RIVM for examination, and on of these products which was used to treat muscle pain contains a metabolite of stanozolol.

Decision
The disciplinary committee will impose a period of ineligibility of two years commencing on the date of the doping control.
The legal costs and fees will be borne by the athlete.

Facts
The Royal Dutch Billiards Federation (Koninklijke Nederlandse Biljartbond, KNBB) reported a violation of the Anti-Doping Code. During a competition match the defendant was tested, his A-sample was found positive for the prohibited substance benzoylecgonine, a metabolite of cocaine.

History
The defendant claims that the cause of the positive test was smoking cigarettes after drinking beers the day before the doping test. The cigarettes where offered by people he didn't knew. Since the doping control he didn't participate in competition anymore.

Decision
The disciplinary committee did not accept the defendant's statement and decides to impose a period of ineligibility of two years commencing on the day of the decision.
The legal costs and fees will be borne by the defendant.

Facts
The French Basketball Federation (Fédération Française de Basket-Ball, FFBB) charges respondent M110 for a violation of the Anti-Doping Rules. During a match on May 27, 2012, a sample was taken for doping test purposes. The analysis of the sample showed the presence of prednisolone and prednisone. Prednisolone and prednisone are prohibited substance according the World Anti-Doping Agency (WADA) prohibited list, they are regarded as specified substances.

History
The positive test is caused by medication the respondent used to treat chronicle sinusitis. The use of the medication was mentioned on the doping test form. He has proof of subscriptions for this condition.

Decision
1. The respondent receives a warning.
2. The decision dated August 31, 2012, from the disciplinary committee of the FFBB will be cancelled.
3. The decision will start on the date of notification.
4. The decision will be published and sent to the parties involved.

Facts
Defendant appeals against a decision of the Disciplinary Committee from the Dutch Royal Strength Sport Fitness Federation (Koninklijke Nederlandse Krachtsport en Fitnessfederatie, KNKF).

History
Defendant didn't attend a doping test out of competition. The Defendant wasn't a member of the KNKF at that time and wasn't practicing his sport anymore. Due to sport injuries he ended his membership.

Submission appeal committee
Although a membership ends on the end of the calender year it is obvious the defendant ended his participation in active sport.

Decision
The Committee agrees that the defendant is released form all the charges and penalties. Legal costs and fees will be borne by the KNKF.

The supply of doping products and the potential of criminal law enforcement in anti-doping : an examination of Italy's experience : executive summary / Letizia Paoli, Alessandro Donati. - KU Leuven, 2013

Motivation and Aims of the Study:

The present study draws its main motivation from the growing dissatisfaction of World Anti-Doping Agency (WADA) and numerous international and national policy-makers with the traditional anti-doping approach. This has developed since the 1960s through the interaction of the International Olympic Committee (IOC), international sports federations, and national governments, and since 2001, WADA, “focus[ing] squarely on the athlete[s]” (WADA, 2010b) and their testing. The 2012 London Olympics again demonstrated the limits of athletes’ testing: despite the 6,000 tests conducted, only two athletes tested positive during the Olympics, whereas seven others were “caught” in the preceding two weeks, which also belong to the official testing period for the games (Associated Press, 2012; Niggli, 2013, personal communication).
Today, there is a growing consensus among national and international policy-makers and many scholars (e.g., Bannenberg and Rössner, 2006; Rössner, 2011; Howman, 2011; Houlihan and García, 2012; see also AFP, 2011) that a broader approach is needed, including the use of criminal law instruments and, specifically, the repression of “trafficking.” According to the WADA (2010), for example, “it is imperative that additional strategies be combined with testing, research and education to ensure an efficient and effective anti-doping fight.” Testing alone cannot tackle five of the eight core violations listed in the WADA Anti-Doping Code, which constitutes the cornerstone of the current international drug 3 control regime and is implemented by national governments through the ratification of the 2005 UNESCO International Convention against Doping in Sport.

In this study, we have examined Italy’s anti-doping criminal law experience with the two main aims:
1) analyzing the production and distribution (collectively referred to as trade or supply) of doping products—an expression that includes both doping substances and methods and
2) understanding how anti-doping criminal provisions and their enforcement can contribute to improve the fight against doping within and outside the sports world. Since the late 1990s, in fact, Italy has played a pioneering role in the criminal law control of doping, and numerous investigations have shed light in Italy on different facets of the problem of doping and specifically of the supply of doping products.

By implementing a multi-method research design (see below), we have mapped the distribution system of doping products from producers to final users in Italy and built a typology of suppliers, identifying their motivations, modus operandi and mutual relationships and assessing their revenues and profits. On the basis of the same and other secondary sources, we have also evaluated the legislative bases, actors and outcomes of Italy’s anti-doping criminal law action, identifying a series of challenges that this action faces. To provide necessary context for assessing the supply of doping products, we have also estimated the size and financial dimensions of the Italian market for doping products—to our knowledge our study constitutes the first attempt to estimate these aspects of a national market for doping products.