CAS 2010_A_2185 Alberto Blanco vs USADA

1 Apr 2011

CAS 2010/A/2185 Alberto Blanco v. United States Anti-Doping Agency (USADA)

This matter concerns an appeal by Mr. Alberto Blanco (the "Appellant") fiom the Award of the Panel issued pursuant to the rules of the American Arbitration Association (the "AAA") on 14 July 2010, sanctioning the Appellant with a two year period of ineligibility for a doping violation. Mi: Blanco argues that he should be exonerated on the grounds that the test results showing the presence of a prohibited exogenous substance in his urine Samples are unreliable. This unreliability arises from the fact that no negative controls were run by the laboratory during the analyses of his A and B Samples, and the alleged lack of robustness and reproducibility with regard to the test results.

CAS 2010_A_2107 Flavia Oliveira vs USADA

6 Dec 2010

CAS 2010/A/2107 Flavia Oliveira v. United States Anti-Doping Agency (USADA)

Cycling
Doping (oxilofrine)
Specified substance
CAS power of review
Requirement to prove no intent to enhance sport performance
Degree of fault of the athlete
Duty of care of the athletes
Proportionality of the sanction
Requirements for obtaining a reduced period of ineligibility
Relevant factors to be considered in reducing the period of ineligibility

1. Pursuant to Article R57 of the Code, which provides the panel with full power to review the facts and law and authorizes it to issue a new decision which replaces the decision challenged, a panel must make its independent determination of whether the appellant’s contentions are correct, not limit itself to assessing the correctness of the appealed decision or award.

2. Clause two of Article 10.4 of the WADA Code does not require the athlete to prove that he/she did not take a product (for example a nutritional supplement) with the intent to enhance sport performance. If such construction was adopted, an athlete’s usage of nutritional supplements, which are generally taken for performance-enhancing purposes, but which is not per se prohibited by the WADA Code, would render Article 10.4 inapplicable even if the particular supplement that is the source of a positive test result contained only a specified substance. Therefore Article 10.4 of the WADA Code requires the athlete only to prove his/her ingestion of the specified substance was not intended to enhance his/her sport performance. This construction of Article 10.4 harmonises the clear language in clause one with the differing and ambiguous language of clause two, and is consistent with its explanatory Comment.

3. The athlete’s “degree of fault” is only relevant in determining whether his/her period of ineligibility should be reduced. It is not to be considered in determining whether he/she can prove his/her lack of intent to enhance sport performance.

4. Because the risks of mislabelling and/or contamination now are generally known or at least foreseeable, all athletes must exercise reasonable care to ensure a nutrition supplement does not contain a banned substance whether the WADA Code classifies it as a prohibited or specified substance.

5. In determining the athlete’s period of ineligibility, the panel must impose an appropriate sanction that furthers the WADA Code’s objective of proportionate and consistent sanctions for doping offences based on an athlete’s level of fault under the totality of circumstances.

6. Unlike Article 10.5 of the WADA Code (and its implementation in the UCI Anti-Doping Regulations), Article 10.4 of the WADA Code (and its implementation in the UCI Anti-Doping Regulations) does not require the athlete to prove “no significant fault or negligence” to obtain a reduced period of ineligibility for testing positive for a specified substance. The appropriate inquiry is the athlete’s “degree of fault” under the circumstances. To resolve this issue, the panel must determine whether the nature and degree of his/her unreasonable conduct under the circumstances was so high that a two-year period of ineligibility is proportionate and consistent with other similar cases.

7. The fact that an athlete would lose the opportunity to earn large sums of money during a period of ineligibility or the fact that the athlete only has a short time left in his or her career or the timing of the sporting calendar are not relevant factors to be considered in reducing the period of ineligibility under Article 10.4 of the WADA Code.


The Court of Arbitration for Sport decides on 6 December 2010:

1.) The appeal filed by Flavia Oliveira on April 27, 2010 against the decision of the American Arbitration Association dated April 6, 2010 is upheld.
2.) The decision of the American Arbitration Association dated April 6, 2010 imposing a period of ineligibility of two years is set aside and a period of ineligibility of eighteen (18) months commencing on August 30, 2009 is substituted therefor.
3.) This award is pronounced without costs, except for the Court Office fee of CHF 500 paid by Flavia Oliveira which shall be retained by the CAS.
(…)
5.) All other or further claims are dismissed.

CAS 2004_O_679 Bergman vs USADA

13 May 2005

CAS 2004/O/679 USADA v/Bergman

2.1.1 Oh 6 April 2004, the Respondent provided a urine sarnple as part of the USADA Out-of competition testing program, His sample was sent to the UCLA Olympic Analytical Laboratory ("UCLA Laboratory") in Califomia for analysis, The UCLA Laboratory is WADA-aecredited.
2.1.2 A letter to the Respondent communicated the results of the UCLA Laboratory on 4 June 2004, The letter stated that Ms A sample from 6 April 2004 had tested positive for a prohibited substance under the Union Cycliste Internationale ("UCI") Anti-Doping examination Regulations as applicable ki April 2004 ('UCI Antidoping Regulations"), namely recombinant human erythropoietin (rhEPO), The UCLA Laboratory found it to contain rEPO with a basic area percentage of 79,5%.

CAS 2007_A_1284 WADA vs Federación Colombiana de Natación & Lina Maria Prieto

8 Jul 2008

CAS 2007/A/1284 & CAS 2007/A/1308 World Anti-Doping Agency (WADA) v. Federación Colombiana de Natación (FECNA) & Lina Maria Prieto

Aquatics (swimming)
Doping (norandrosterone; testosterone)
Direct application of the rules of an International Federation to athletes
Appealable decision before the CAS
Applicable law by tacit agreement of the parties
Condition for the admissibility of the appeal
Consequences of an IF’s delay to communicate a decision to WADA
Duty of the athlete to ensure that no prohibited substance enters his/her body

1. Provided that a National Federation is subject to the rules/regulations of an International Federation, such regulations and in particular the doping control rules can be deemed directly applicable to athletes. This may be either through an agreement/license or through the accreditation for a specific competition, or through a chain of references to the International Federation rules in by-laws or other regulations. This kind of factual assumption - based on experience and the fact that competitors generally submit themselves to all applicable regulations of the relevant competition (including doping rules) by their participation in the competition - has already been confirmed by CAS precedents.

2. The concept of an appealable decision (including an appeal against the failure to make a decision) has been defined in the well-established case law of the CAS. In this respect, the form of the communication has no relevance to determine whether there exists a decision or not; furthermore for a communication to be a decision, the communication must contain a ruling, whereby the body issuing the decision intends to affect the legal situation of the addressee of the decision or other parties. Neither the lack of knowledge of the form in which the official decision has been rendered nor the fact that a formal (written) decision with reasons has not yet been handed in, changes this in any way.

3. The election of governing law by tacit agreement is possible. For instance, by their behaviour, the parties could have clearly given their assent to the application of a specific law. Nevertheless, to admit this, it must undoubtedly emerge through the parties’ conclusive acts, that they agreed on the applicable law when they entered into the disputed contractual relationship.

4. In cases where a provision refers to the “receipt of the decision” for defining the time limit of the appeal (in contrast to the term “notification/notice of the decision”), this must be interpreted in a sense of a mere and common “time limit provision”. In no way does it indicate a requirement of admissibility to the effect that a party entitled to appeal cannot lodge an appeal before the actual receipt of the relevant formal decision. Rather, if there are no doubts as regards the existence of a decision, the term “receipt” has to be interpreted in a way that the “dies a quo” of the time limit is at least – as “a minus” of a receipt – the notice of the decision.

5. A delay of an International Federation to pass to WADA the information of the existence of the decision cannot be held against WADA. Should it be otherwise, it would imply for WADA to intervene in national cases and take measures or make inquiries, which obviously fall into the competence of the National or the International Federations.

6. It is each athlete’s personal duty to ensure that no prohibited substance enters his/her body. For an athlete, to allege that he/she made a few researches on the internet before he/she ingested nutritional supplements allegedly containing the prohibited substance is not enough to meet the standard of care expected of a top-level athlete, i.e. obtain assurances from his/her physician, pharmacist or team doctor that the supplements do not contain a prohibited substance.


The Court of Arbitration for Sport decides on 8 July 2008:

1.) The appeals filed by the World Anti-Doping Agency in the present matter are partially upheld.
2.) The appealed decision of the FECNA in the present matter is set aside.
3.) Ms Lina Maria Prieto is guilty of an Anti-Doping Rule violation committed during the Campeonato Internacional Ciudad De Cali, which took place between 7 and 9 April 2006 in Cali, Colombia.
4.) Ms Lina Maria Prieto shall be declared ineligible for two years. The period of ineligibility to be imposed upon her shall commence on 18 May 2006.
5.) Ms Lina Maria Prieto’s results obtained during the 2006 Campeonato Internacional Ciudad De Cali and or/during the above-mentioned period of ineligibility, her eventual medals, her points and prizes are forfeited.
(…)
9. All other motions or prayers for relief are dismissed.

ISR 2013 KNKF Decision Disciplinary Committee 2013019 T

18 Jul 2013

Facts
The Royal Netherlands Power Sport and Fitness Federation (Koninklijke Nederlandse Krachtsport en Fitnessfederatie, KNKF) has reported an anti doping rule violation against the athlete. The athlete had provided a sample for doping control purposes during a match in 2013. Analysis of the sample showed the presence of a metabolite of stanozolol and a metabolite of cannabis. Stanozolol and cannabis is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list and cannabis is regarded as a specified substance.

History
The athlete didn't provide any information about how the prohibited substances had entered his body. The concentration of cannabis was below the threshold value, as determined with immediate effect on May 11, 2013 (150ng/ml). Therefore this wasn't considered as a violation.

Decision
1. The sanction is a period of ineligibility of two years in which the athlete can't take part in competition or manifestations organized or authorized by the KNKF.
2. The administrative costs has to be borne by the athlete.

CAS 2009_A_1873 WADA vs FPC & João Paulo da Costa Cabreira

19 Apr 2010

TAS 2009/A/1873 WADA c/ Federation Portugese de Cyclisme (UVP-FPC) et M. João Paulo da Costa Cabreira
CAS 2009/A/1873 WADA vs FPC & João Paulo da Costa Cabreira

In May 2008 the Portuguese Police conducted criminal investigations against the cycling team LA-MSS. As part of the investigation the Athlete João Paulo da Costa Cabreira and other team members provided a sample for doping control.

In August the Federation Portugese de Cyclisme (FPC), the Portuguese Cycling Federation) reported an anti-doping rule violation against the Athlete for tampering the dopingtest.
Therefore on 24 February 2009 the FPC Disciplinary Council decided to impose a 2 year period of ineligibility on the Athlete.
The Athlete appealed the decision with the FPC Judicial Council which decided on 6 May 2009 to set aside the decision of 24 February 2009 and to acquit the Athlete.

Hereafter WADA appealed the FPC Judicial Council decision of 6 May 2009 with the Court of Arbitration for Sport. WADA requested the CAS Panel to set aside the FPC decision and to impose a 2 year period of ineligibility on the Athlete.

The Athlete denied the possession and use of doping and stated that he was tested before without any problems. The Athlete argued that there were irregulerities with the sample collection and testing and complained that he his reputation was damaged due to the negative publicity and without evidence that doping was found in his body, in his car and in his house.

Based on the evidence and statements made by expert witnesses, the Panel concludes that the WADA Cologne Laboratory has established that it used a valid method to analyze the sample of the Athlete. The Panel finds that the sample showed that the Athlete intentionally used the Bacillolysing powder which has the ability to degrade the prohibited substance EPO.
Therefore the Court of Arbitration for Sport decides on 19 April 2010 to annul the decision of the FPC Judical Court of 6 May 2009 and to impose a 2 year period of ineligibility on the Athlete, starting on 24 February 2009.

CAS 2009_A_1802 WADA vs CONI & Perotto

28 Aug 2009

CAS 2009/A/1802 World Anti-Doping Agency (WADA) v. Comitato Olimpico Nazionale Italiano (CONI) & Elena Perotto

  • Cycling
  • Doping (19-norandrosterone; 19-noretiocholanolone)
  • Presence of two forbidden substances
  • Distinction between “ineligibility” and “disqualification” as regards sanction
  • Duration of the sanction

1. The established presence of two forbidden substances in the bodily sample of an athlete, namely 19-norandrosterone and 19-noretiocholanolone which are endogenous anabolic androgenic steroids, constitutes an anti-doping rule violation under the World Anti-Doping Code which applies directly under CONI Sports Anti-Doping Rules for any athlete not under the benefit of any Therapeutic Use Exemption.

2. Under constant CAS jurisprudence relating to CONI matters, in a case where an athlete is not or not anymore a “soggetto tesserato”, that is a “licensed member”, no other sanction is possible than a sanction of “inibizione” or “ineligibility”. CONI and any sport federation have the power to keep out of their activities athletes, doctors, coaches, and any other individual that has proven to have committed a serious misconduct and, lacking any affiliation with CONI or with a relevant sport federation, cannot be disqualified.

3. Under the applicable regulations, the period of “inibizione” or ineligibility for a first offence of presence of a prohibited substance in an athlete’s sample is a minimum of two years since the athlete has no given any legitimate reason for a reduction of the otherwise applicable period of ineligibility. In this respect, an athlete cannot benefit from any reduction of the otherwise applicable sanction if he or she did not prove by a balance of probability, how the prohibited substance entered his/her body.


The Court of Arbitration for Sport decides on 28 August 2009:

1.) The appeal of WADA against the decision of the TNA of CONI dated 26 January 2009 is declared admissible and partly upheld.
2.) The Panel imposes a period of two year ineligibility (“inibizione”), which shall start on 26 January 2009.
(…)
5.) All other motions or prayers for relief are dismissed.

CAS 2008_O_1643 Vladimir Gusev vs Olympus Sarl

15 Jun 2009

TAS 2008/O/1643 Vladimir Gusev c/ Olympus sarl
CAS 2008/O/1643 Vladimir Gusev vs Olympus Sarl

Related case:
Swiss Federal Court 4A_352/2009
October 13, 2009
Swiss Federal Court 4A_368/2009 Vladimir Gusev vs Olympus Sarl
October 13, 2009

The case involved a Russian racing cyclist, Vladimir Gusev and a Belgian Company Olympus Sarl. Olympus hired Gusev for two years on November 15, 2007 and the contract was governed by Swiss law. On 23 July 2008, Olympus Sarl terminated the contract, alleging that a medical report seriously suggested that the cyclist had taken exogenous EPO.

The Athlete Gusev started arbitration proceedings in front of the Court of Arbitration for Sport (CAS) and on 15 June 2009 the CAS Panel found for Gusev and ordered Olympus to pay damages.

Hereafter Olympus filed without succes an appeal and a revision with the Swiss Federal Court.

CAS 2008_A_1698 Riccardo Ricco vs CONI

17 Mar 2009

TAS 2008/A/1698 Riccardo Ricco c. CONI
CAS 2008/A/1698 Riccardo Ricco vs CONI

In July 2008 the Agence française de lutte contre le dopage (AFLD), the French Anti-Doping Agency, has reported an anti-doping rule violation against the Italian Athlete Riccardo Ricco after his A and B samples tested positive for the prohibited substance methoxy polyethylene glycol-epoetin beta (CERA).
Therefore the CONI Anti-Doping Prosecution Office (UPA) notified the Athlete and ordered a provisional suspension.

The Athlete admitted the violation and stated the substance was administered in Italy before his participation to the Tour de France. As substantial assistance the Athele testified about the doping involvement of dr. Santuccione and other Athletes.
On 2 October 2008 the Tribunale Nazionale Antidoping del CONI (TNA), the CONI National Anti-Doping Tribunal, decided to impose a 2 year period of ineligibility on the Athlete.

On 11 November 2008 the Athlete appealed the TNA decision of 2 October 2008 with the Court of Arbitration for Sport (CAS). The Athlete argued that there were grounds to reduce the imposed period of ineligibility.
The Sole CAS Arbitratior considered the Athlete’s violation and his substantial assistance and decides on 17 March 2009:
1.) The appeal filed by Riccardo Ricco against the CONI TNA decision of 2 October 2008 is partially accepted.
2.) The CONI TNA of 2 October 2008 is partially reformed.
3.) The Athlete Riccardo Ricco is suspended from all sports activity for a periode of 20 (Twenty) months. This period runs from 18 July 2008.
4.) Any other claim made by the parties shall be rejected.
5.) (…)

CAS 2008_A_1612 Michael Rasmussen vs FMC

22 Jan 2009

TAS 2008/A/1612 M, Rasmussen c/ FMC
CAS 2008/A/1612 Michael Rasmussen c/ FMC

Related cases:

  • Dutch District Court 2008 Michael Rasmussen vs RABO Wielerploegen
    July 2, 2008
  • Dutch Court of Appeal 2012 Michael Rasmussen vs RABO Wielerploegen
    June 19, 2012
  • Dutch Court of Appeal 2013 Michael Rasmussen vs RABO Wielerploegen
    June 25, 2013

Facts
Michael Rasmussen, the appellant, appeals against the of the Cycling Federation of Monaco (Fédération Monégasque de Cyclisme, FMC) dated June 30, 2008. In this decision he received a period of ineligibility of two years starting from July 26, 2007.

History
By letter of 22 December 2006 UCI Rasmussen was informed of his inclusion in the target group of riders out of competition subject to the UCI controls for 2007 pursuant to Article 74 of the UCI Anti-Doping Rules ("RAD"), herefore requiring him to provide location information within the meaning of Articles 78 to 81 RAD. Ie it does not dispute.

Rasmussen started July 7, Tour de France 2007 in London. At the end of stage 25 July 2007, he was suspended by the General Managing Director of the Rabobank in relation to localization issues discussed below and the resulting warnings.
July 26, 2007, he was dismissed with immediate effect by Rabobank.
He received 4 warnings instructions between May 8, 2007, and January 4, 2008.

Details:
- 1th warning set by the Anti-Doping Danmark (ADD) May 8, 2007 for a failed inspection by ADD home has Lazise (Italy) April 6, 2007 where he was to reside under the initial location information. He will explain some According to the ADD he left April 5, 2008 in Bilbao. Rasmussen failing to report the change of location to the UCI and has provided no explanation for this omission, he received the first warning.
- 2th warning set by the UCI June 29, 2007 for sending information later. The UCI has indeed received June 11, 2008 a letter from Mr. Rasmussen that he was in Mexico from June 4 to 12, 2008. On June 26, 2007, Mr. Rasmussen said he had the right to provide information on his movements by post, these explanations were rejected by the UCI, accordingly, notified him the 2nd warning.
- 3th warning set by the ADD July 10, 2007 for a missed test performed by the ADD in Lazise (Italy) June 21, 2007 where it should be according to the original location information required for the 2nd quarter of 2007. Rasmussen did not give any explanation within the time limit, he received the 3rd warning.
- 4th warning set by the UCI January 4, 2008 for false location information. Indeed, by fax allegedly sent from Lazise June 26, 2007 - but received by the UCI June 27, 2007, Mr. Rasmussen stated that he remained in Mexico until then and it would be in the French Pyrenees 27 and 28 June 2007; in fact, he had stayed in the French Alps June 21 to 24, 2007, and in the French Pyrenees from 25 to 29 June 2007.

The UCI has taken note of this fact after reading the report of the Committee on Vogelzang November 12, 2007 and the hearing of Rasmussen on 13 November 2007. She was then contacted for the rider's warning breach of its obligations location on November 30, 2007. December 17, 2007, Rasmussen admitted the validity of the warning; after which, the UCI sent him a warning set January 4, 2008.
By letter dated February 8, 2008, the Anti-Doping Commission of the UCI has asked the FMC ouverture disciplinary proceedings against Mr. Rasmussen for violation of Articles 15.3, 15.4 and 15.5 FDR.
On 28 May 2008, the case was heard by a hearing before the Board of CME ("Commission Hearing"). The sanction is mentioned above.

Objections Michael Rasmussen
The appellant questions the first three warnings from he ADD because of incompetence. Also he disagrees with the fact that the whereabouts can't be handled in writing.

Objection FMC
It was known that the leaders of his team (Rabobank) were aware of its places situation in spring 2007, which is also apparent from the verdict of the Court of Utrecht 2 July 2008 (employment tribunal case) in which Mr. Rasmussen succeeded on Rabobank on Rabobank conceming the unfair dismissal.

Considerations CAS
Is is proven that appellant had delivered false information which was fraudulent infomation that rendered any inoperative control.

Decision
1. The appeal is rejected.
2. The decision of the FMC is confirmed.

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