Facts
UK Anti-doping reports Sam Walsh (player) for anti-doping rule violation. He was tested during a training session at the Club on December 9, 2009.The urine sample he provided was found to contain 19-norandrosterone and 19-noretiocholanolone, metabolites of anabolic steroids, which are prohibited substances. The Tribunal held a hearing of the charge on 29 April 2010.

History
The player explained by letter he used steroids because of an operation on his eye. He did not exercise his right to have the B sample tested. But later it was established he had used supplements with the banned substances.

Decision
the Tribunal makes the following decision:
1. A Doping Offence has been established.
2. The period of ineligibility imposed is two years starting on January 30,
2010 and ending at midnight on January 29, 2012.

Appeal
The respondent may appeal against this decision by lodging a Notice of Appeal within 21 days of receipt hereof.

Facts
Matthew Duckworth (player) appeals against the decision of the National Anti-Doping panel dated October 12, 2010. The player had committed an anti-doping rule violation because of the positive result of a doping test taken on August 8, 2010. The prohibited substance methylhexaneamine (MHA) was detected.

history
The player was playing rugby league since the age of 16. Due to a car accident in 2008 he underwent physiotherapy rehabilitation. In 2009 he returned to the rugby league. He used the supplement Jack3d which, in his belief, helps him to wake up and get out in the morning. He doesn't use it on match days and he didn't write down the use of it on the form during the doping test. Jack3d is regarded to be the cause of the positive test, he took a provisional suspension on September 1, 2010.

considerations player
The substance MHA is with effect from January 1, 2011, a specified substance instead of a non-specified substance, which invokes the principle of "lex mitior".

considerations panel
There is no indication that the MHA was taken to enhance sport performance.
Warnings about the supplement Jack3d were issued in the summer of 2010.

decision
The panel allows the Appeal and substitutes a period of ineligibility of 6 months commencing at 9 am on 1 September 2010, the time on which the provisional suspension was imposed. This is a Decision on Appeal under Rule 13 of the National Anti-Doping Panel Procedural Rules, neither the athlete nor UK Anti-Doping has any further right of appeal.

by Nenad Dikic, Michael McNamee, Bojan Vajgic [et all] in British Journal of Sports Medicine, 07/17/2013

Recent positive doping cases and a series of mistakes of medical doctors of the International Federation of Basketball have reopened the debate about the role of medical doctor in elite sport. This study shows that some sports physicians involved in recent positive doping cases are insufficiently aware of the nuances of doping regulations and, most importantly, of the list of prohibited substances. Moreover, several team doctors are shown to have exercised poor judgment in relation to these matters with the consequence that athletes are punished for doping offences on the basis of doctors’ negligence. In such circumstances, athletes’ rights are jeopardized by a failure of the duty of care that (sports) physicians owe their athlete patients. We argue that, with respect to the World Anti Doping Code, anti-doping governance fails to define, with sufficient clarity, the role of medical doctors. There is a need for a new approach emphasizing urgent educational and training of medical doctors in this domain, which should be considered prior to the revision of the next World Anti Doping Code in 2013 in order to better regulate doctor's conduct especially in relation to professional errors, whether negligent or intentional.

CAS 98/211 B. / Fédération Internationale de Natation (FINA)

Related case:

FINA 1998 FINA vs Michelle Smith de Bruin
August 6, 1998

• Swimming
• Doping (testosterone)
• Hearing de novo
• Compliance with the testing procedure
• Burden of proof

1. The virtue of an appeal system which allows for a full rehearing before an appellate body is that issues relating to the fairness of the hearing before the tribunal of first instance fade to the periphery. The CAS appeals procedure allows any defects in the hearing before the first instance tribunal to be cured by the hearing before CAS.

2. The standard of proof required of the federation is high: less than the criminal standard, but more than the ordinary civil standard. To adopt a criminal standard (at any rate, where the disciplinary charge is not a criminal offence) is to confuse the public law of the state with the private law of an association.

In April 1998 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Irish swimmer Michelle Smith de Bruin.

The Athlete's sample was taken for a out-of-competition doping test at the her home in January 1998 and analysis of the urine samples showed the presence of alcohol. The concentration of alcohol (whiskey odor) was too high to be produced naturally and indicated physical manipulation. As a result the FINA Doping Panel decided on 6 August 1998 to impose 4 year period of ineligibility on the Athlete.

Hereafter in September 1998 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).

The Athlete disputed the validity of the chain of custody of her sample and asserted that the sample tested at the Barcelona Lab was in fact not her sample.Further the Athlete claimed that, if the sample tested was her sample, it had been manipulated by a person other than the Athlete herself.

Following assessment of the evidence regarding the process of collecting, transporting and testing of the Athlete’s samples the Panel establishes that there was no breach in the chain of custody. Accordingly the Panel concludes that in fact it was the Athlete’s sample that had been tested.

The Panel concludes that the Athlete had the opportunity to manipulate her sample and had the motive to do so if she was in fact engaged in the use of illicit substances. In this matter the Panel’s addressed the conclusion of the Barcelona Lab about the analysis of the Athlete’s A and B samples:

“Additional laboratory results obtained with the sample (especially, steroid profile and isotope ratio mass spectrometry measurements) suggest the administration of some metabolic precursor of testosterone. Longitudinal follow up is recommended.”

The Panel holds that there is unchallenged evidence that what was, even at the date of the testing, a banned substance (because it fell within the general category of substances related to those specifically listed) was found in the Athlete's urine; there is, therefore, actual evidence before the Panel that there was something to conceal. Not only was the manipulation not wholly successful, but there was an obvious motive for it.

Therefore the Court of Arbitration for Sport hereby decides on 7 June 1999:

1.) The Appeal filed by Michelle Smith de Bruin on 2 September 1998 is dismissed.

2.) The decision issued by the FINA Doping Panel on 6 August 1998 is confirmed.

(...)

An Overview of Non-Analytical Positive & Circumstantial Evidence Cases in Sports / Richard H. McLaren.- (Marquette Sports Law Review 16 (2006) 2 (Spring)

As new technologies for detecting drug violations in sport struggle to keep up with the creation of new doping substances and methods, non-analytical positive cases have become a more prominent tool in the fight against doping. Although doping offenses are most commonly established by direct evidence, where a positive analytical result from an accredited laboratory directly shows that an athlete had a prohibited substance in his or her body, situations will arise where only circumstantial evidence points to the commission of a doping offense. The challenge in such cases will be to prove the use of prohibited substances or techniques without direct evidence.

A circumstantial evidence case can be troublesome because the benefit from the concept of strict liability is eliminated. Strict liability has evolved in the jurisprudence of the Court of Arbitration for Sport (CAS) and has been adopted in the World Anti-Doping Agency Code (WADA Code). Strict liability means that a doping violation occurs when a banned substance is found in an athlete's body. The conclusion that an infraction occurred is not based upon intent or lack thereof.

Contents:

I. Introduction
II. Types of Non-Analytical Positive Cases
III. Pre WADA Code
A.) Summary of Burden and Standard of Proof Before WADA
B .) Summary of Cases
i. Michelle Smith de Bruin
ii. Mark French
iii. Michelle Collins
C.) Conclusions Regarding Pre-WADA Code Cases
IV. Post-WADA Code Implementation
A.) Summary of Burden and Standard of Proof After WADA Code
Introduction
B.) Post-WADA Non-Analytical Cases
i. Galabin Boevski
ii. Tim Montgomery and Chryste Gaines
C.) Conclusions Regarding Post-WADA Cases
V .Conclusions

Related cases:

• CAS 2012_A_2804 Dimitar Kutrovsky vs ITF
  October 3, 2012
• ITF 2015 ITF vs Dimitar Kutrovsky
  October 1, 2017

Facts
Dimitar Kutrovsky (player) was charged for an anti-doping rule violation. On February 14, 2012, at the SAP Open tournament held in San José, California from February 13-19, 2012, het provided an urine sample. The A sample tested positive for the substance methylhexeanamine (MHA). An oral hearing in respect of the charge took place in London on April 19, 2012, with telephone links to the player and his legal representatives in the USA.

History
The player asserted that he had purchased a supplement called “Jack3d” in powder form over the counter in August 2011, the Jack3d contained methylhexaneamine (MHA) he wasn't aware of this.

Decision
The Tribunal:

1. confirms the commission of the doping offence specified in the notice of charge set out in the ITF’s letter to the player dated March 8, 2012, namely that a prohibited substance, , was present in the urine sample provided by the player at the SAP Open in San José, California, on February 14, 2012;

2. orders that the player’s individual results must be disqualified in respect of the SAP Open tournament in San José in February 2012, and in consequence rules that the prize money and ranking points obtained by the player through his participation in that event must be forfeited;

3. orders, further, that the player’s individual results (including ranking points and prize money) in the ITF Futures event in Brownsville, Texas, later in February 2012 shall be disqualified and all prize money and ranking points in respect of that competition shall be forfeited;

4. finds that the player has succeeded in establishing by a balance of probability how the prohibited substance entered his body;

5. finds that the player has not succeeded in establishing to the comfortable satisfaction of the Tribunal that his use of the prohibited substance leading to the positive test result in respect of the sample taken on February 14, 2012 was not intended to enhance his sport performance; and

6. declares the player ineligible for a period of two years commencing on February 14,2012 and expiring at midnight (London time) on February 13, 2014 from participating in any capacity in any event or activity (other than authorized anti-doping education or rehabilitation programs) or competition authorized, organized or sanctioned by the ITF or any of the other bodies referred to in Article 10.10.1(b) of the Program.

7. This decision may be appealed to the Court of Arbitration for Sport by any of the parties referred to in Article 12 of the Program, in accordance with the provisions of Article 12.

Related case:

CAS 2011_A_2518 Robert Kendrick vs ITF
November 10, 2011

In June 2011 the International Tennis Federation (ITF) has reported an anti doping rule violation against the American tennis player Robert Kendrick after his sample tested positive for the prohibited substance 4-Methylhexan-2-amine (methylhexaneamine, 1,3-dimethylamylamine, 1,3 DMAA).

Following notification the Athlete gave a prompt admission and accepted a provisional suspension. He filed a statement in his defence and was heard for the ITF Independent Anti-Doping Tribunal.

The Athlete explained that he had used Zija XM3 capsules, provided by a teaching tennis professional, to reduce the effect of jetlag. He had established that the product did not contain a prohibited substance following internet research about the product ingredients.

The Tribunal accepts that the violation was not intentional, yet it finds that he had acted negligently. The Tribunal deems that the Athlete failed to consult a medical practitioner because of his jetlag concerns, nor did he contact the USADA or the ITF hotline in order to obtain advice about the product.

Therefore the International Tennis Federation Independent Anti-Doping Tribunal’s decides on 29 July 2011:

(1) Confirms the commission of the doping offence specified in the Charge;

(2) Orders that Mr Kendrick’s individual result must be disqualified in respect of the French Open 2011, and in consequence rules that the 10 ranking points and € 15.000 in prize money obtained by him from his participation in that event must be forfeited;

(3) Orders further that Mr Kendrick be permitted to retain the prize money obtained by him from his participation in the subsequent UNICEF Open;

(4) Finds that Mr Kendrick has established that the circumstances of his doping offence bring him within the provisions of Article M.4 of the Programme;

(5) Declares Mr Kendrick ineligible for a period of 12 months, commencing on 22 May 2011, from participating in any capacity in any event or activity (other than authorised anti-doping education or rehabilitation programmes) authorised by the ITF or by any national or regional entity which is a member of the ITF or is recognised by the ITF as the entity governing the sport of tennis in that nation or region.

Facts
French Federation of Weightlifting, Fitness, Powerlifting and Bodybuilding (Fédération Française d'Halterophilie, Musculation, Force Athlétique et Culturisme, FFHMFAC) charges respondent M29 for a violation of the Anti-Doping rules. During a match on November 27, respondent didn't attend the doping control.

History
The respondent claims that because his daughter had an asthma attack he couldn't attend the doping control, he had to take her to a doctor; the doctor who had examined her confirms this crisis. However he didn't present a document for his state of denial needed for this matter.

Decision
1. The sanction is a period of two years in which respondent can't take part in competition or manifestations organized or authorized by the FFHMFAC.
2. The decision starts after June 20, 2005.
3. The decision will be published and sent to the parties involved.

Related case:

CAS 2010_A_2245 Andrey Plotniy vs ITF
April 11, 2011

In March 2010, the Russian tennis player Andrei Plotniy admitted that he had committed an anti-doping rule violation after his sample tested positive for the prohibited substance Carphedon.

Consequently he accepted a 15 month period of ineligibility, starting on 1 November 2009. However in 2010 he participated in five tennis competitions authorized by the German tennis federation.

The representative of the player explained that his client wasn't aware he was no allowed to play tennis for a national association, he will return any prize money he obtained and will apologize to the tournament organizers.

The ITF decides on 20 September 2010 that:

1.) The results that Mr Plotniy obtained in the events are disqualified, and the ranking points awarded therein are forfeited, along with the following prize money;

2.) The original 15-month period of Ineligibility imposed on Mr Plotniy now starts over again as from the date of his last participation in the events noted above, i.e., 22 August 2010, so that it will end at midnight on 21 November 2011. As a result, until that date Mr Plotniy may not ‘play, coach or otherwise participate in any capacity in (a) a Covered Event, any other Event or Competition, or any other kind of function, event or activity (other than authorized anti-doping education or rehabilitation programs) authorized, organized or sanctioned by the ITF, the ATP, the WTA, or any National Association or member of a National Association; or (b) any Event or Competition authorized or organized by any professional league, or any international or national-level Event or Competition organization.’ (See Article M.10.1 of the Program). If he has any doubt as to exactly what this prohibition covers, or whether it covers a particular event in which he would like to participate, he should check with the ITF before participating in that event.

3.) In accordance with the Program, the foregoing decision that Mr Plotniy has violated the prohibited against participation while ineligible, and that a reduction under Article M.5.2 is not appropriate, may be appealed to the Court of Arbitration for Sport in accordance with Article O of the Program. Under Article O.5.1 of the Program, the deadline for filing that appeal is 21 days from receipt of the decision being appealed.

4.) Mr Plotniy and those other bodies that have a right of appeal under Article O of the Program may appeal against this decision, such appeal to be filed within 21 days of receipt of this decision.

5.) This decision is being sent to WADA and to RUSADA, and will be published on the ITF’s website.

Related case:

CAS 2009_A_1926 ITF vs Richard Gasquet
December 17, 2009

In April 2009 the International Tennis Federation (ITF) has reported an anti-doping rule violation against the Athlete Richard Gasquet after his A and B samples tested positive for the prohibited substance Cocaine in a low concentration.

After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the ITF Independent Anti-Doping Tribunal.

The Athlete denied the intentional use of the substance and requested for a reduced sanction. He asserted that he had kissed a woman in a club who had ingested Cocaine prior to their rendezvous.

the Athlete argued that if there was a doping offence, the Athlete could establish “No Fault or Negligence” or alternatively “No Significant Fault or Negligence”. Further, he argued that there should be no period of ineligibility.

He argued that because of  the circumstances of the offence – accidental contamination in a social setting after the player had decided to withdraw from the competition through injury - were such that any ban would be grossly disproportionate to the offence and therefore unlawful.

Also in June 2009 the Athlete filed a complaint with the French prosecuting authority, alleging against the woman that a harmful substance had been administered to him, contrary to the French penal code. A criminal complaint was, at some point in time, also filed by the woman against the athlete for defamation.

The French newspaper, Aujourd’hui, published an interview with the woman that reportedly took place the afternoon before, and in which she denied having either taken or been offered any cocaine during the evening of the rendezvous. However, she admitted having taken cocaine on previous occasions in her life.

Furthermore, she asserted that she had kissed the Athlete only briefly and not mouth to mouth, and that she was willing to give evidence and undergo a hair test herself.

On September 2009, the public prosecutor’s department of Paris issued a communiqué stating that the proceedings initiated by the Athlete on 4 June 2009 against the woman for administration of a harmful substance to him had been closed, as no criminal offence had been revealed.

The communiqué furthermore noted that the toxicological examination carried out on “a young lady heard during this procedure” revealed that she regularly consumed cocaine, and that she would be subject to a therapeutic order from the public prosecutor’s department.

The ITF Tribunal Panel accepts that the player has discharged the onus on him of establishing, on the balance of probability, how cocaine entered his system. The Panel notes that the most likely explanation is that advanced by the player, namely that cocaine was transferred to the player from mouth to mouth kissing with the woman.

The Panel rules that this explanation is more likely than not to be the correct one. The Panel holds that in this case, the Athlete’s inadvertent ingestion of cocaine occurred in circumstances in which the degree of his fault was very small, as small as the miniscule quantity consumed.

On 15 July 2009 the ITF Tribunal decides to impose a 2 months and 15 days period of ineligibility on the Athlete for the time already served, starting on the date of the provisional suspension until the date of the decision.

Also Athlete’s results obtained in competitions in Barcelona and Rome during April 2009, shall remain undisturbed and the prize money and ranking points obtained by the player in those competitions shall not be forfeited.