TAS 2007/A/1433 Danilo Di Luca c. CONI

CAS 2007/A/1433 Danilo Di Luca vs CONI

On 30 april 2008 The International Court of Arbitration for Sport (CAS) upheld the three-month suspension of Danilo Di Luca for his relationship with doctor Santuccione at the center of the “Oil for Drugs” scandal.

The CAS arbitrator assigned to the case rejected Di Luca’s appeal of the suspension claiming that there was ample evidence to support allegations that he had worked with Dr. Carlo Santuccione in 2004. CAS, however, also rejected a request by the Italian National Olympic Committee (CONI) that Di Luca’s suspension be extended to two years on the grounds that CONI raised new issues in the appeal as the basis for the requested extension.

While CAS appeals are normally heard by a three-member panel, both sides had agreed to the appointment of a single arbitrator, Luigi Fumagalli.

On 14 October 2007 CONI decided a three-month ineligibliltiy for Di Luca's alleged links to Santuccione. The doctor, who was known as “the chemist” and subject of an Italian police investigation of allegations that he had established a nation-wide sports doping program.

In 2004, a coordinated series of police raids resulted in the seizure of doping products and transfusion records, but the investigation has since moved slowly. Prosecutors offered police records and wiretaps that they said showed regular contact between Di Luca and Santuccione in 2004. The cyclist didn’t deny the contact, but claimed Santuccione had been his family doctor since childhood.

CAS arbitrator Fumagalli said evidence provided by CONI showed Di Luca’s “frequent medical encounters” with Santuccione constituted a violation of Italy’s national anti-doping regulations. When Di Luca filed his appeal of the suspension, CONI attorneys filed a counter-claim, citing article 2.2 of the World Anti-Doping Code as reason to suspend the cyclist for two years.

The Arbitrator Fumagalli, however, ruled that since the WADA code was never raised in the original CONI case brought against Di Luca and, therefore, did not fall within the scope of the appeal.

Facts
The Dutch Taekwondo Union (Taekwondo Bond Nederland, TBN) reports a violation of the Anti-Doping code(ADC). An out of competition doping test revealed the prohibited substance carboxy-finasteride.

History
The athlete was a member of the TBN and took part of the registered testing pool. After several efforts the defendant was found to administer a doping test in his residence. The test was done without the presence of an attendant and the defendant signed the doping consent form without mentioning any medication. No request for examining the B-sample has been made. No request for dispensation has been filed. In a written statement the defendant claims the use, on prescription, of the medicine propecia for baldness. Probably this medicine contains the prohibited substance. Defendant wasn't aware that his prescription contained the prohibited substance, for this he claims no fault or negligence. Every athlete is responsible for his body for not taking any prohibited substances.

Submissions
Defendant appeals for a reduction of the sentence.
Before the doping test he used medicine against baldness, for this he has a medical statement from his physician. His physician was aware he was an elite athlete but didn't warn him about prohibited substances.
The instruction leaflet of the medicine doesn't mention the prohibited substance.
However the prohibited substance doesn't enhance sport performance but belongs to the category masking agents. Also the defendant has a clean history regarding dope use, which indicates he doesn't want to enhance his sport performance.
The disciplinary committee findings are that the published doping list on the website of the TBN didn't correspond with the WADA doping list, the prohibited substance was not mentioned by the TBN website. This implicates a reduction of the sanction because of no significant fault or negligence.
The reduction of the sanction can not be lesser then half of the period of ineligibility for a first offense which means only one year. Although one year is still a severe punishment it lies within the rules.

Decision
The decision is a one year period of ineligibility commencing on the day of the verdict, reduced with the period of voluntary suspension.
An appeal can be made within 14 days.

Mr. Claudemar Santin is a Brazilian athlete in the sport op IPC Powerlifting. He competed at the 2011 Parapan American Games in Guadalajara, Mexico.

The International Paralympic Committee (IPC) has reported an anti doping rule violation against Mr. Claudemar Santin (Respondent) after his sample tested positive for the prohibited substance Tamoxifen and his metabolites 4-hydroxytamoxifen and N-desmethyltamoxifen.
When providing a sample Respondent mentioned the use of Retenic as a medication and/or supplement used in the last seven days preceding the doping control test.

The IPC notified Respondent of the doping violation and ordered a provisional suspension.
The notification letter enclosed a letter “Letter of Decision” for the Respondent to complete and return to IPC no later than 13 December 2011.

The Respondent returned the Letter of Decision to the IPC. In the letter, The Respondent stated that he:
- had no valid Therapeutic Use Exemption (TUE) justifying the presence of the Prohibited Substances found in his sample
- challenged the consequences set out in the ‘ Notification of an Adverse Analytical Finding’ and wished to be invited to a Hearing
- accepted the provisional suspension; and
- waived his right to request the B sample analysis.

Respondent filed a statement in his defence and was heard for the Committee.
Respondent explained his need for the use of Tamoxifen. He also submitted medical reports signed by two doctors for the use of Tamoxifeno for the treatment of mastalgia.

The Hearing Panel finds that Respondent was negligent in his general anti-doping duties when different anti-doping education and awareness initiatives were provided over time, and ample opportunities existed to disclose the use of a Prohibited Substance for health reasons. For that reason, The Hearing Panel is in a view that there is no evidence to consider elimination or reduction op period of ineligibility for specified substances under specific circumstances.

The IPC Anti-Doping Committee recommends the following to the IPC Governing Board:
(a) Respondent’s individual results obtained at the 2011 Parapan American Games and at any other event from the date of 18 November 2011 onwards should be automatically disqualified, including forfeiture of any medals, points and prizes won;
(b) a two-year period of ineligibility should be imposed on the Respondent.
(c) Respondent shall receive credit for the period of provisional suspension and should therefore be declared ineligible from 8 December 2011 (date of the notification) until 7 December 2013; and
(d) a financial sanction of € 1.500,- should be imposed on the Respondent.

On 13 February 2012 the IPC Governing Board accepted the recommendation of the IPC Anti-Doping Committee.

Related Cases:
- NBB 2008 NBB Decision Disciplinary Committee 2008063 T
April 7, 2009
- Dutch District Court 2008 Athlete 2008063 vs NBB
March 10, 2010

Defendant appeals against the decision of the disciplinary committee of the Netherlands Badminton Association (Nederlandse Badminton Bond, NBB). Also the Board of the NBB appeals against the decision of the disciplinary committee.

Defendant was unaware, nor had any suspicion, that the ecstasy pills contained the prohibited substances. Also defendant claims that the NBB failed to give sufficient information about the Anti-Doping Code (ADC) rules.

The board of the NBB in her view thinks that period of ineligibility should be 2 years, there are no conditions to reduce the period.

The appeal commission findings are that the defendant has violated the Anti-Doping code rules for testing positive on the prohibited substances MDMA, MDA and 11-nor-∆9-tetrahydrocannabinol-9-carboxylic acid. These substances belong to the non-specific substances for which a reduction can be applicable.
The is no lack of information that the NBB gave toward the ABC rules.
Reduction of the period of ineligibility should be given with great consideration. The lapsed time, usage or intention for taken ecstasy is not important. The appeal committee doesn't agree with the disciplinary committee to reduce the period of ineligibility because this was the first case in badminton.

The appeal committee declines the appeal of the defendant and grants the appeal of the board of the NBB, the decision is a period of ineligibility of two years.

Mr. Kisialiou is an athlete from Belarus in the sport op IPC Wheelchair Dance Sport, participating in the 2010 IPC Wheelchair Dance Sport World Championships.

The International Paralympic Committee (IPC) has reported an anti doping rule violation against Mr. Ihar Kisialiou (the Respondent) after his sample tested positive for the prohibited substance 11-nor-9-carboxy-delta-9-tetrahydrocannabinol (a metabolite of cannabis).
The IPC notified Respondent of the doping violation and ordered a provisional suspension.
The notification letter enclosed a letter “Letter of Decision” for the Respondent to complete and return to IPC no later than 28 December 2010.

On 27 December 2010, the Respondent returned the Letter of Decision to the IPC. In the letter, The Respondent signed that he accepted that he did not have a TUE granted for the prohibited substance; that he accepted a provisional suspension starting on the date of the notification of an adverse analytical finding (18 December 2010); that he accepted the results of the A sample analysis; that he expressly waived the right of B sample analysis; that he accepted to have committed an anti-doping rule violation in accordance with Article 2.1 of the Code; and that he accepted the consequences of the anti-doping rule violation as proposed.

By returning the “Letter of Decision”, duly completed and signed, the Respondent accepts an anti-doping rule violation under Article 2.1 of the Code, and accepts the proposed sanction.

The IPC Anti-Doping Committee recommends as follows:
(a) The Respondent is automatically disqualified of his individual results obtained in the 2010 IPC Wheelchair Dance Sport World Championships from the date of 6 November 2010 onward, including forfeiture of any medals, points and prizes won;
(b) A two year period of ineligibility, commencing as from the date of the provisional suspension, is imposed on the Respondent. As such, the Respondent is declared ineligible from 18 December 2010 until 17 December 2012;
(c) The disqualification of all competition results including forfeiture of any medals, points and prizes obtained subsequent to the sample collection on 6 November 2010, if any exist.

On 11 January 2011 the IPC Governing Board accepted the recommendation of the IPC Anti-Doping Committee.

Related cases:
- NBB 2008 NBB Decision Appeal Committee 2008063 B
Juni 30, 2009
- Dutch District Court 2008 Athlete 2008063 vs NBB
March 10, 2010

The Netherlands Badminton Association (Nederlandse Badminton Bond, NBB) reports a violation of the Anti-Doping Code, during a in-competition doping test the prohibited substances MDMA, MDA and 11-nor-∆9-tetrahydrocannabinol-9-carboxylic acid was revealed. Defendant used an ecstasy pill which caused the positive result. The mentioned prohibited substance is on the list of non-specific substances, and the committee agrees that the substance wasn't used for enhancing sport performance.
The defendant, as a member of the NBB, should have known the negative effect of taken an ecstasy pill.
Therefore the decision of the disciplinary committee reduces the period of ineligibility to one year, commencing one day after sending the decision.
An appeal con be made within 10 days.

Rechtbank Utrecht
Sector handels- en familierecht
March 10, 2010
281737 / KG ZA 10-92

Related cases:
NBB 2008 NBBDecision Disciplinary Committee 2008063 T
April 7, 2009
NBB 2008 NBB Decision Appeal Committee 2008063 B
Juni 30, 2009

Defendant takes legal action in a application for a temporary injunction against the Netherlands Badminton Association (Nederlandse Badminton Bond, NBB). He faced a one year period of ineligibility because he was reported for a violation of the Anti-Doping code (ADC), during a in-competition doping test the prohibited substances MDMA, MDA and 11-nor-∆9-tetrahydrocannabinol-9-carboxylic acid was revealed. Also the B-sample tested positive for this substance.
Defendant used an ecstacy pill which caused the positive test, he claimed that he wasn't aware of the consequences of taking the prohibited substance. Also he claims that the NBB failed to give sufficient information about the ADC.

Defendant appealed against the decision of the disciplinary committee but also appeal commission sentenced the defendant with a period of ineligibility of two years.

Defendant claims the Anti-Doping Authority Netherlands had not allowed him to be present at the B-sample testing. Also the ADC is not meant for non-professional athletes, the ADC invades his private life which is protected by section 8 of the European Convention on Human Rights (ECHR). The NBB suspension started on a wrong date. The information about doping controls was not sufficient. There are rules about reduction of the suspension which the NBB didn't use.
The NBB argues that if the claim of the defendant is granted it would substantially change the decision of the disciplinary committee and the appeal committee.

The court can only judge briefly the decisions of the committees. The judge has no qualification to change these decisions, however this was the request of the defendant and his claim will be denied.
The defendants claim that his privacy is invaded is incorrect because he acknowledge the doping tests for being a member of the NBB.
The defendant didn't make clear the information supply of the NBB was insufficient.
The defendant borne the fee of the lawsuit.

related cases:
CAS 2006_A_1025 Mariano Puerta vs ITF
July 12, 2006
ITF 2005 ITF vs Mariano Puerta
December 21, 2005

Player appealed against decision of the ATP Tour. During a doping test his A and B-sample revealed the prohibited substance clenbuterol. The ATP has adopted rules, the ATP Tour 2003 Official Rulebook, which is applicable to this case.
The lab reported the results of the doping test to the Anti-Doping program administrator(APA), he selects a review board (RB). The RB determines that the A-sample was positive and a medical Liaison (ML) contacts the player for further information. After consideration the B-sample was also tested. The B-sample was also positive on clenbuterol, the player is informed and advised to be in suspension till the hearing took place within the 60-day guideline. The hearing was held on December 1, 2003, the player provided written statements from himself, his brother, his fiancée, his attending physician, a friend and an expert report and a consultant in medical biochemistry. The player and his physician where cross-examined by the ATP-counsel.
Clenbuterol is considered as an anti-asthma medication that is also a powerful anabolic agent. Player has proof he suffered from an asthma attack and he will ask for a therapeutic use exemption. He didn't know the prohibited substance was in his medicine. The question remains if this can be regarded as special circumstances. The player had a moderate asthma attack and he didn't report this, his situation was solved with pills such treatment does not indicate an emergency situation. His physician can still apply for a exemption for the use of his medicine.
The tribunal also concludes that the RB did take appropriate steps to make a reasonable and well-documented decision on whether the A-sample should be disqualified.
The player submits that the APA did not administer the RB process with diligence when it permitted one member to miss the conference call.
The tribunal finds that the principle of proportionality ought to be applied to the forfeiture of prize money because the doping violation was had no performance enhancing effect.
The special circumstances the player claims for not knowing he used a prohibited substance is not valid. Elite Athletes are well aware of the problems for sport in the clandestine use of performance enhancing drugs. Especially with medicine he has to make inquiries as to what medicine had been prescribed. Also avoiding the substance was possible if he had told the physician that he was a professional tennis athlete.

Decision:
The sanction will be a suspension of 9 months, inclusive of the voluntary suspension and will end on July 1, 2004.
Ranking points and prize money earned at the tournament are to be forfeited. Only the prize money of the tournament in which the positive analytical result was found will apply to the principle of proportionality.

Appellant appealed against decision of the ATP Tour. During a doping control a violation of the Anti-Doping regulation (ADR) occurred, his A-sample contained the prohibited substances noranderosterone and noretiocholanolone. Also the B-sample was tested positive on these substances, therefore appellant stayed in voluntary suspension. The hearing of the tribunal was held in the appropriate time limit on April 22, 2003.
A written statement was delivered and an expert report was filed. Sworn affidavits of each witness intended to be called as a witness. There was a difference in the amount of nandrolone in the A and B sample mentioned in the lab reports but this was due to standards of limits for measuring.
The appellant has been found guilty for a doping offence. However he has no idea how the substance had entered his body also the minimal level of the test results would not have enhanced his sport performance.
The test result are regarded as valid although the variation in the A and B-sample. There are cases (Meca-Medina) which describe the result mentioned as a grey zone due to endogenous production of nandrolone, the tribunal rejects these submissions.
The ADR shows that an athlete is responsible for what is in his body. Endogenous production or consumption contaminated meat only conveal trace amounts of nandrolone metabolites, there is no basis for that in de appellant's sample.
For not knowing how the prohibited substance entered his body there are no grounds for exceptional circumstances.
The decision is a mandatory two year suspension, commencing on 26 October 2002 till 25 October 2004, collected prize money in the ATP 2002 has to be returned and points earned are struck out. Also prize money of other games in that period have to be returned and points gained are struck out.

CAS 2005/A/872 Union Cycliste Internationale v. Federico Muñoz Fernandez & Federación Colombiana de Ciclismo

On 27 October 2004 Mr. Muñoz participated in the Vuelta a Guatemala where he was selected to supply a urine sample.
On 20 December 2004 the Union Cycling Union (UCI) reported an anti doping rule violation against Mr. Muñoz after his A and B samples tested positive for the prohibited substance recombinant human erythropoietin (rhEPO).

On 18 February 2005 The Federación Colombiana de Ciclismo (FCC) Disciplinary Committee concluded that Mr. Muñoz had violated the anti-doping rules and decided to impose a period of ineligibility of 18 months. The FCC did not disqualify Mr. Muñoz’s results from the Vuelta a Guatemala.

Mr. Muñoz appealed against this FCC Disciplinary Committee’s decision to the General Disciplinary Committee of the Colombian National Olympic Committee. On 21 April 2005 the Colombian National Olympic Committee declared the decision of the FCC Disciplinary Committee to by null and void, and remitted the matter to the FCC for re-hearing.

On 20 April 2005 the UCI appealed against the FCC Disciplinary Committee’s decision, dated 18 February 2005, to the Court of Arbitration for Sport (CAS). Both parties were heard for the Panel and filed their statements and documents in their defence.

Because it is an athlete’s responsibility to ensure that what enters into his body does not contain a prohibited substance, the Panel concluded Mr. Muñoz had to do more than simply rely on his doctor. He should attempt to obtain written confirmation from the doctor that the medicines he administered did not contain any prohibited substances.

It is essential that doctors who treat athlete play their full part in de waging of the fight against doping in sport. It can be no excuse for a doctor who is treating an athlete not to make himself familiar with the list of prohibited substances.

The Panel finds Mr. Muñoz took no precautions and must bear the responsibility for his failure. On the facts of this case the Panel cannot eliminate or reduce a 2 year sanction that must follow from Mr. Muñoz failure. That period will commence on 18 February 2005, the date of the FCC decision.

The Court of Arbitration for Sport decides on 30 January 2006 that:

1.) The appeal by the Union Cycliste Internationale against the decision issued on 18 February 2005 by the Disciplinary Commission of the Federación Colombiana de Ciclismo is allowed.

2.) Mr. Muñoz is disqualified from the Vuelta a Guatemala and all of his results since 27 October 2004 are cancelled.

3.) Mr Federico Muñoz Fernandez is ineligible to compete in cycling races for two years from 18 February 2005 until 17 February 2007.

4.) This award is pronounced without costs, except for the court office fee of CHF 500 paid by the Union Cycliste Internationale, which is retained by the CAS.

5.) The Federación Colombiana de Ciclismo shall pay the Union Cycliste Internationale a contribution of CHF 5,000 towards the latter's legal and other costs relating to this arbitration.