CAS 2002/A/362 IAAF vs Czech Athletic Federation (CAF) & Roman Zubek

CAS 2002/A/362 International Association of Athletics Federations (IAAF) / CAF & Z.

• Athletics
• Doping (DHEA)
• CAS jurisdiction
• Time-limit for appeal by IAAF
• Distinction between exogenous administration and endogenous production of DHEA

1. The CAS has jurisdiction pursuant to Rule 21 of the IAAF Rules which provides that all the appeals to the CAS be made within sixty days of the date of communication to the prospective appellant of the decision that is to be referred. When a national federation issues several decisions related to the same case, any activity or decision which goes beyond stating that the previous decision is final and therefore untouchable constitutes a new decision. The last decision considered as final by the national federation starts a new time period for appeal under the IAAF Rules.

2. Pursuant to the IAAF Rules, a doping offence takes place when a prohibited substance is present within an athlete’s body tissues or fluids. DHEA is listed as a prohibited substance. The doping offence is established if the testing procedures show that the concentration of DHEA in the A and B samples greatly exceeds the concentration that might result from endogenous production and if the isotope radio mass spectrometry (IRMS) analysis clearly indicates the synthetic origin of DHEA.

The Czech Athletic Federation (CAF) reported an anti-doping rule violation after sprinter Roman Zubek’s A and B samples tested positive for the prohibited substance dehydroepiandrosterone (DHEA). The Czech Athletic Federation (CAF) notified Zubek of the doping violation and ordered a provisional suspension. Zubek was heared for the Disciplinary Committee and requested additional testing of his sample.

The CAF Disciplinary Commission decided not to punish Zubek for the positive test result of the DHEA urine sample for the reason that in their opinion the found substance is [the body‟s] own substance. There is no limit for this substance in the body that should be understood as doping given by any competent authority (COC, IOC, and AC CR). As a matter of principle, the Disciplinary Commission of the Czech Athletic Federation cannot fairly evaluate the quantity of the substance in the body, if it was delivered artificially or if it was a body-own quantity. The CAF decided to cease Zubek’s suspension and not to punish him further.
Nevertheless Zubek’s sample was sent to the Cologne Laboratory for IRMS-testing for testing and revealing a high concentration of DHEA. After several deliberations with CAF the IAAF appealed CAF’s decision.

The Tribunal unanimously concludes that both tests in Praque and Cologne individually provide sufficient evidence to find a doping violation. Therefore, even if Zubek’s challenge to the second procedure had merit, it would be irrelevant. The tribunal also unanimously concludes that the original decision of the CAF not to sanction Z. for the doping violation was wrong.

Therefore the Court of Arbitration for Sport on 27 August 2002:

1.) Upholds the appeal filed by the IAAF on 31 January 2002.

2.) Finds that tests of Zubek’s samples from the 13 May 2000 athletics meeting in Prague provide evidence of a doping violation.

3.) Finds that the CAF failed to appropriately declare Zubek ineligible.

4.) Suspends Zubek from competition for 21 months, 13 days (two years less the two months, seventeen days served under the provisional suspension) from the date of this decision; i.e., until 10 May 2004.

CAS 2004/O/649 USADA vs Chryste Gaines - Award on Jurisdiction

On 24 December 2004, the Court of Arbitration for Sport Panel rendered its unanimous decision on Respondents' Motion. The Panel unanimously dismissed Respondents' Motions and affirmed the jurisdiction of the CAS in both of the present cases.

The Panel has considered carefully the many documents submitted by the parties which describe and define the rights and responsibilities of the various bodies involved in doping control and adjudication in the United States, and which establish the framework for the exercise of those rights and responsibilities, including the arbitration of disputes.

The Panel has also reviewed the legal authorities filed by the parties and drawn to the Panel's attention during the 15 December 2004 hearing. In those undertakings, the Panel has been greatly assisted by the cogent, albeit conflicting, submissions made by the parties' counsel in writing and orally.

The Panel is unanimously of the opinion that both the letter and spirit of the various understandings, agreements and protocols binding on the relevant sport bodies and their members and athletes, support the conclusion that the authority and responsibility to prosecute the present cases resides in USADA. In particular, the Panel rejects the Respondents' claim that non-analytical positive doping cases could only be prosecuted, in the circumstances of these cases, by USATF.

The notional division of anti-doping responsibilities that Respondents postulate, as between USATF and USADA, does not accord with the facts. USADA was established as an independent entity with responsibility over doping control and adjudication. That responsibility extends beyond "drug testing" and covers all cases of alleged doping violations. It possessed, and possesses, full authority to prosecute these cases.

For all of the foregoing reasons, the Court of Arbitration for Sport hereby decides on 9 February 2005:

1.) The Respondents' Motions to Dismiss for Lack of Jurisdiction filed respectively by Mr. Montgomery on 12 November 2004 and Ms. Gaines on 15 November 2004 are dismissed;

2.) The jurisdiction of the CAS in cases no. 2004/O/645 and 2004/O/649 is affirmed.

CAS 2010/A/2226 Carlos Manuel Brito Leal Queiroz v. Autoridade Antidopagem de Portugal (ADoP)

Carlos Manuel Brito Leal Queiroz (the Appellant) appealed against the decision for ineligibility for 6 months, dated August 30, 2010, by Respondent, the Portugese Anti-doping Authority (Autoridade Andidopagem de Portugal, ADoP).
The Appellant, Mr. Carlos Queiroz (“Mr. Queiroz”) is a Portuguese football coach. At the time of the facts, Mr. Queiroz was the coach of the Portuguese National Football Team.

The Portuguese Football Federation (FPF) reported an anti doping rule violation against Appellant after he did not act in a welcoming fashion and used very inappropriate and/or offensive language during an sample collection in front of three Portuguese DCO’s.
All three DCO’s reported that Mr. Queiroz’ conduct did not undermine the anti-doping control procedure, but that they did disturb their work.
The FPF Disciplinary Committee acquitted Mr. Queiroz of an anti-doping rule violation, but nevertheless sanctioning him with a 30-day suspension from all sports-related activities, for conduct that was considered unbecoming of the sport.
On 30 August 2010, the President of the Instituto de Deporte de Portugal (IDP) issued a decision which: revoked the FPF Disciplinary Council decision, found the Appellant guilty of an anti-doping rule violation and suspended the Appellant for a period of six months from all sports activities.
The Appellant was heard for the CAS Panel and filed his statements and objections in his defence.

The Panel concluded that Appellant’s conduct did not disturb the work of the Portuguese DCO’s and the sample collection, therefore decides to set aside the IDP decision for the 6 months ineligibility.
Fees and expenses for this Panel shall be borne ADoP.

Join or Quit : Final Report of the Anti-Doping Strategy Committee: Investigation of the Doping Culture in Dutch Men's Cycling / Anti-Doping Strategy Committee. - Winnie Sorgdrager ... [et al]. - Royal Dutch Cycling Union (KNWU); Netherlands Olympic Committee * Netherlands Sports Confederation (NOC*NSF);
Netherlands Ministry of Health, Welfare and Sport (Ministerie VWS). - 2013. - 92 p., fig., tab., lit.

ENGLISH SUMMARY CONCLUSIONS AND RECOMMENDATIONS:
p. 61-70

CONCLUSIONS
- Explanations for the doping culture
- The secrecy surrounding doping
Organisation of the use of banned substances in the Netherlands
- Team leaders and management
- Medical supervision
- Other points
Effectiveness of the anti-doping policy

RECOMMENDATIONS
Cultural changes
- Better provision of information
- More job mobility and the opening up of new knowledge
- Building in a space for openness
Changes in the organisational structure of cycling
- Better team structure
- Clear position of medical supervisors
- Improving the position of riders
- Other competition and business models
Changing in anti-doping strategies in cycling
- Increasing the chance of catching offenders
- Improving international cooperation
- Separation of conflicting interests
- General comment
Final remarks

DUTCH TITLE:

Meedoen of stoppen : eindrapport van de Commissie Anti-Doping Aanpak: onderzoek naar de dopingcultuur in het Nederlandse wegwielrennen bij de heren / Commissie Sorgdrager; Winnie Sorgdrager... [et al]. - Koninklijke Nederlandsche Wielren Unie (KNWU); Nederlands Olympisch Comité* Nederlandse Sport Federatie (NOC*NSF); Ministerie van Volksgezondheid, Welzijn en Sport (VWS). - 2013. - 92 p., fig., tab., lit.

Commissie Anti-Doping Aanpak:
- Mr. Winnie Sorgdrager (Voorzitter Commissie)
- Prof. dr. Maarten van Bottenburg (Commissielid)
- Dr. Edwin Goedhart (Commissielid)
- Drs. Mark Monsma (Ambtelijk Secretaris Commissie)
- Drs. Pieter Verhoogt (Onderzoeker)
- Dr. Martijn van der Meulen (Onderzoeker)
- Marieke Gerritsen (Secretaresse)

Begeleidingscommissie:
- Saskia Capello KNWU Bestuurslid
- Arthur Cremers KNWU Bestuurslid
- Jeroen Bijl NOC*NSF Manager Topsport
- Femke Winters NOC*NSF Projectleider Topsportbeleid
- Bart Coumans Dopingautoriteit Hoofd afdeling Preventie
- Koen Terlouw Dopingautoriteit Hoofd afdeling Controle
- Jasmijn Willemsen Ministerie van VWS Senior Beleidsmedewerker
- Peter de Klerk Ministerie van VWS Senior Beleidsmedewerker

INHOUD:

Hoofdstuk 1 Inleiding
- Achtergrond oprichting Commissie Anti-Doping Aanpak
- Opdracht
- Werkwijze
Hoofdstuk 2 Begrippen
- Doping
- Dopingcultuur
- Dopingsysteem
Hoofdstuk 3 Historische ontwikkeling van het internationale wielrennen, het dopinggebruik en de anti-dopingaanpak
- Acceptatie van prestatie bevorderende middelen (1869 - 1959)
- Opkomst anti-dopingbeleid en verschuiving dopinggebruik (1960 - 1989)
- De impact van EPO en aanscherping anti-dopingbeleid (1990 - 2007)
- Verminderde acceptatie dopinggebruik en intensivering van bestrijding (vanaf 2008)
Hoofdstuk 4 De dopingcultuur in het Nederlandse wielrennen
- Socialisatie: dopinggebruik en geheimhouding als aangeleerd gedrag
- Rationalisatie: persoonlijke rechtvaardiging van dopinggebruik
- Institutionalisering: versterking van de groepsnorm over dopinggebruik
- Ondersteuning: facilitering en stimulering van dopinggebruik door de ploeg
- Instandhouding: factoren de cultuur bestendigen trainingsprogramma’s

by Soek, Jan Willem
Doctoral Thesis
Erasmus University Rotterdam: Erasmus School of Law (ESL)

Athletes who achieve extraordinary feats on the pitch stir up the imagination and enjoy a unique position within society. However, laurels received one day, may be just as quickly snatched back the next if it becomes known that the athlete achieved his or her exceptional performance with the aid of doping. Manipulating the body by the use of substances and methods that unnaturally enhance athletic performance is considered a violation of several fundamental principles related to sport. The arguments by which sports organisations have sought to justify their fight against doping have been discussed in Chapter 1. Doping is considered a health risk, but also a threat to both athlete’s integrity and that of sport as a whole, and consequently, given the position in society occupied by sport, of that of society itself. None of these arguments, however, is entirely convincing. Perhaps this is why many sports organisations have declined to state reasons for their anti-doping policies in their anti-doping regulations. The fight against doping in sport is considered self-evident and the arguments which are advanced in its favour merely serve to illustrate this fact. It was only a relatively short time ago that the systematic fight against doping in sport through legal rules began. As a separate body of disciplinary law besides their regular disciplinary rules the sports organisations established special anti-doping regulations for the prosecution and punishment of doping offences. As opposed to under general disciplinary law where unwritten minimum standards usually apply, the disciplinary law of doping uses detailed material rules which define the act of doping and the way in which it is to be punished. As such, the disciplinary law concerning doping resembles the statutory disciplinary rules that exist for certain professions, but is also comparable to public punitive law. What sets disciplinary doping law apart however is that the material rules do not aim to regulate the actual exercise of a profession, but are based on the ideological aspects which prevail in the environment where an athlete's activities take place. In disciplinary doping law, for example, there are hardly any examples of professional error, but rather of acts which undermine the image and ethics of the sport. This is an aspect which it has in common with criminal law. Disciplinary doping law which mainly aims to regulate the relevant offences and their prosecution and punishment should therefore be organised along the same lines as criminal law and entitle athletes to certain rights to counter the demands of the collective. This is necessary, as in sport the interests of the collective are often valued above those of the individual.

Appealed case:
ISR 2009 KNKF Decision Disciplinary Committee 2009015 T
September 15, 2009

The Royal Netherlands Power Sport and Fitness Federation (Koninklijke Nederlandse Krachtsport en Fitnessfederatie, KNKF) appealed against the Disciplinary Committee’s decision, dated September 15, 2009, to dismiss KNKF’s report of an anti-doping rule violation against a person after testing positive for the prohibited substance metandienone.

The Disciplinary Committee concluded KNKF failed to file the report about the anti-doping rule violation within the time limit.
Neither did the Anti Doping Authority hereafter.

The Appeal Committee ruled a written proceeding and follows the Disciplinary Committee’s decision regarding KNKF’s failure to report. Therefore the Appeal Committee dismiss KNKF’s appeal and decides to let the interest of sportsmen prevail in a timely trial, not a flexible deadline to report anti-doping rule violations.

Appealed case:
ISR 2009 KNKF Decision Disciplinary Committee 2009016 T
September 15, 2009

The Royal Netherlands Power Sport and Fitness Federation (Koninklijke Nederlandse Krachtsport en Fitnessfederatie, KNKF) appealed against the Disciplinary Committee’s decision, dated September 15, 2009, to dismiss KNKF’s report of an anti-doping rule violation against a person after testing positive for the prohibited substances 17β-hydroxymethyl-17α-methyl-18-norandrost-1,4,13-trien-3-one (a metabolite of metandienone); stanozolol and 4β-hydroxystanozolol (a metabolite of stanozolol); and testosterone/epitestosterone larger then 4. The Disciplinary Committee concluded KNKF failed to file the report of the anti-doping rule violation within the time limit. Neither did the Anti-doping Authority thereafter.
The Appeal Committee ruled a written proceeding and follows the Disciplinary Committee’s decision regarding KNKF’s failure to report. Therefore the Appeal Committee dismiss KNKF’s appeal and decides to let the interest of sportsmen prevail in a timely trial, not a flexible deadline to report anti-doping rule violations.

Related case:
ISR 2009 KNKF Decision Appeal Committee 2009016 B
November 24, 2009

The Royal Netherlands Power Sport and Fitness Federation (Koninklijke Nederlandse Krachtsport en Fitnessfederatie, KNKF) has reported an anti doping rule violation against this person after person’s A and B samples tested positive for the prohibited substances 17β-hydroxymethyl-17α-methyl-18-norandrost-1,4,13-trien-3-one (a metabolite of metandienone); stanozolol and 4β-hydroxystanozolol (a metabolite of stanozolol); and testosterone/epitestosterone larger then 4. After notification person did not request a hearing nor filled a statement in his defence.
The Disciplinary concluded KNKF failed to file the report of the anti-doping rule violation within the time limit. Neither did the Anti-doping Authority thereafter.
The Disciplinary Committee decided therefore to dismiss this case.

Related case:

ISR 2009 KNBB Decision Disciplinary Committee 2009018 T
August 25, 2009

On 25 August 2009 the Disciplinary Committee of the Royal Dutch Billiards Union (KNBB) decided to impose a 2 year period of ineligibility on the Person after he tested positive for the prohibited substance Cocaine. In First Instance the Person had failed to respond nor filed a statement in his defence.

Hereafter the Person appealed the Decision of 25 August 2009 with the KNBB Appeal Committee. He requested for a reduced sanction and fully admitted the use of Cocaine.

The Appeal Committee dismissed most of the Athlete assertions but agrees that the imposed sanction was too severe and disproportional. Here the Committed considers that the use of Cocaine clearly occurred unintentonal, out-of-competition and in an context unrelated to sports enhancement.

Therefore the KNBB Appeal Committee decides to set aside the Decision of 25 August 2009 and to impose a 1 year period of ineligibility on the Person starting on 25 August 2009.

Fees and expenses for this committee shall be borne partially by the Person.

The Royal Netherlands Power Sport and Fitness Federation (Koninklijke Nederlandse Krachtsport en Fitnessfederatie, KNKF) reports a violation of the Anti-doping Code (ADC), during a doping test on September 15, 2009, a metandienone metabolite was detected which is a prohibited substance. The substance was also detected in the B-sample.
The defendant didn't send a written defence, by the rules of the ADC there's no need for an oral hearing and the case will be submitted in writing.

The disciplinary commission concludes that the KNFK failed to send the report within the time period of 6 weeks. The Anti-Doping Authority failed to notify the KNKF that the period of 6 weeks has passed, also the period to make an appeal has passed.
The disciplinary commission sees the 6 weeks period for filing a report as an important guarantee for the athlete for not being to long in uncertainty about the consequenses of his positive test, the period is compelling, not a point of order.

The disciplinary commission decision is that the report is inadmissible. An appeal can be made within 21 days.