• CAS 2008/A/1585 Yücel Kop vs IAAF & TAF
• CAS 2008/A/1586 Süreyya Ayhan Kop vs IAAF & TAF

CAS 2008/A/1585 Yücel Kop v. International Association of Athletics Federations (IAAF) & Turkish Athletics Federation (TAF) and CAS 2008/A/1586 Süreyya Ayhan Kop v. IAAF & TAF

Related cases:

• CAS 2008_A_1586 Süreyya Ayhan Kop vs IAAF & TAF
  November 10, 2009
• Swiss Federal Court 4A_624_2009 Süreyya Ayhan Kop vs IAAF & TAF
  April 12, 2009
  
  

• Athletics
• Doping (multiple doping offences)
  Interpretation of Article 13.2.1 of the WADA Code
• Justification of a life ban for the second doping offence
• CAS power to rule de novo and limitation through the parties’ requests

1. The purpose of article 13.2.1 of the WADA Code is not to exclude the possibility for anti-doping organizations to institute a review system below the CAS for decisions concerning international-level athletes but rather to ensure that CAS is the final body to which decisions concerning an international-level athletes may be appealed, thereby providing them with the same treatment under unified rules and practices that ultimately guarantee a more level playing field in international competitions, in the interest of fairness and equality of treatment.

2. An athlete who committed at least two standard sanctions, which under the applicable rules require an ineligibility sanction of between 8 years and a life ban, leaves no other option to a CAS panel than to find a life ban would apply under the 2009 IAAF Rules when both violations must be deemed very serious in nature, while at the same time no tangible elements of proof allow to consider that the athlete did not intentionally commit the violations in both instances. In this respect, there is no more need to establish whether the violations would formally qualify as being committed in aggravating circumstances under the 2009 IAAF Rules.

3. A CAS Panel has the authority to evaluate and decide the case de novo; and has therefore the power to vary a sanction in either direction provided that such variation has been duly requested by a party.

Mr Kop has been the athlete's trainer and husband throughout her career (i.e. Süreyya Ayhan Kop) as an international-level athlete. In that respect he functioned as 'athlete support personnel' as defined by the IAAF Rules.

On 25 January 2008, Mr Kop was sanctioned with a two-year period of ineligibility by the Turkish Athletic Federation (TAF) Disciplinary Commission in relation to the athlete's second anti-doping rule violation but on the principal basis that he had been negligent in his coaching duties.

Mr Kop appealed this decision to the Turkish Youth and Sport Arbitral Tribunal. On 30 May 2008, in a decision with reference numbers 2008/55 and 2008/10, the Turkish Youth and Sport Arbitral Tribunal confirmed a two-year sanction.

Hereafter Mr Kop decided to appeal the foregoing decision with the Court of Arbitration for Sport (CAS).

Following assessment of the case the Panel determindes that it has neither heard nor seen any evidence that Mr Kop violated any anti-doping rule or any disciplinary rule connected with his duties as athlete support personnel in the meaning of the lAAF Rules.

Furthermore, the appealed decision of the Turkish Youth and Sport Arbitral Tribunal failed to explain on what basis Mr Kop was sanctioned in that connection.

Therefore the CAS Panel decides on 10 November 2009 to set aside the decision of the Arbitral Tribunal of the Turkish General Directorate of Youth and Sport and to lift the 2 year period of ineligibililty on Mr Yücel Kop.

CAS 2004/O/645 United States Anti-Doping Agency (USADA) v. M. & International Association of Athletics Federation (IAAF)

• Athletics
• Doping (THG)
• Absence of any adverse analytical finding (“non-analytical positive” case)
• Burden and standard of proof
• Uncontroverted testimony
• Adverse inference
• Admission of the use of a prohibited substance
• Sanction

1. USADA bears the burden of proving, by strong evidence commensurate with the serious claims it makes that the athlete committed the doping offences. It makes little, if indeed any difference, whether a „beyond reasonable doubt‟ or „comfortable satisfaction‟ standard is applied to determine the claims against the athlete.

2. Doping offences can be proved by a variety of means. In the absence of any adverse analytical finding (“non-analytical positive” cases), other types of evidence can be substantiated. Among these is the uncontroverted testimony of a wholly credible witness, which can be sufficient to establish that the athlete has indeed admitted to have used prohibited substances in violation of applicable anti-doping rules.

3. The admission of the use of prohibited substances merits a period of ineligibility under IAAF Rules of two years. The date of commencement of the sanction takes into consideration the numerous delays in the hearing process which are not attributable to the Athlete. The retroactive cancellation of all the athlete results, rankings, awards and winnings as of the date of admission of the use of prohibited substances has to take place.

In June 2004 USADA seeks a four-year sanction of the Athlete Tim Montgomery for participating in a wide-ranging doping conspiracy implemented by the Bay Area Laboratory Cooperative (BALCO). USADA charges that, for a period of several years, the Athlete had used various performance-enhancing drugs provided by BALCO.

Althought Montgomery has never had a single drug test found to be a positive doping violation, the charges made by USADA are based on:

• all of the blood and urine tests he had provided in recent years;
• documents seized by the U.S. government from BALCO that have been delivered to USADA;
• statements made by BALCO officials and other documents.

USADA contended that BALCO was involved in a conspiracy for the purpose of the distribution and use of doping substances and techniques. They were either undetectable or difficult to detect in routine drug testing.

Further BALCO is alleged to have distributed several types of banned doping agents to professional athletes in track and field, baseball and football. Among these agents were tetrahydrogestrinome (THG), otherwise known as “the Clear” by BALCO and its users.

THG is a designer steroid that could not be identified by routine anti-doping testing until 2003, when a track and field coach provided a sample of it to USADA. It is undisputed that the Clear is a prohibited substance under the IAAF Rules.

After deliberations between the parties this case was transferred in July 2004 to the Court of Aribitration for Sport (CAS).

The Panel has no doubt in this case, and is more than comfortably satisfied, that the Athlete committed the doping rule violation in question. It has been presented with strong, indeed uncontroverted, evidence of doping by the Athlete.

The Panel establishes that there is an admission contained in his statements made to W. and to others while in her presence. On this basis, the Tribunal finds that the Athlete Tim is Montgomery guilty of a doping offence.

Therefore on 13 December 2005 the CAS Panel decides that:

1.) Respondent is guilty of the offence of admitting having used a prohibited substance under IAAF Rules 55.2(iii) and 60.1(iii).

2.) The following sanctions shall be imposed on Respondent:

• a) A period of ineligibility under IAAF Rules for two years commencing as of 6 June 2005, including his ineligibility from participating in U.S. Olympic, Pan American or Paralympic Games, trials or qualifying events, being a member of any U.S. Olympic, Pan American or Paralympic Games team and having access to the training facilities of the United States Olympic Committee (“USOC”) Training Centers or other programs and activities of the USOC including, but not limited to, grants, awards, or employment pursuant to the USOC Anti-Doping Policies;
• b) The retroactive cancellation of all awards or additions to Respondent's trust fund to which he would have been entitled by virtue of his appearance and/or performance at any athletics meeting occurring between 31 March 2001 and the date of this Award.

3.) (…).

4.) (…).

5.) This Award deals definitively with all charges brought against Respondent by Claimant in this arbitration. All charges not expressly dealt with herein are dismissed.

TAS 2006/A/1159 IAAF c/ Ligue Royale Belge d'Athlétisme (LBFA) & M. Ridouane Es-Saadi

CAS 2006/A/1159 IAAF vs Belgian Athletics Federation & Ridouane Es-Saadi

In July 2004 an anti-doping rule violation was reported by the administration of the Flanders region against the Athlete Ridouane Es-Saadi after a search in his house resulted in the charge for possession of prohibited substances: growth hormones, EPO and clenbuterol.

Consequently on 4 March 2005 the Disciplinary Commission of the Flemish Ministery imposed a 6 month period of ineligibility on the Athlete and 12 months conditional for a 2 year period.

Hereafter in January 2006 a new anti-doping rule violation was reported against the Athlete after his sample tested positive for the prohibited substance Methadone.

The Athlete stated that he had used an prescribed compounded medication. His pharmacist testified that not could be exluded that the prohibited substance found was the result of contamination from medication prepared for other patients.

Considering the witness statement and that Methadone is atypical substance to be used for long distance sport the Disciplinary Commissions of the Flemish Ministery decided on 8 June 2006 for acquittal of the Athlete. Hereafter in September 2006 the IAAF appealed the Belgian decision of 8 June 2006 with the Court of Arbitration for Sport.

The IAAF requested to set aside the Appealed Decision and to impose a lifetime period of ineligibility on the Athlete for his second violation. Supported by an expert witness the IAAF contended that the concentration found in the Athlete’s sample was too high to be attributed to contamination of his medication.

In view of the evidence the Panel finds that the Athlete failed to explain how the prohibited substance had entered his body. He also failed to establish exceptional circumstances, nor that he acted without significant fault or negligence .

Therefore the Court of Arbitration for Sport Panel decides on 23 May 2007 to set aside the decision of the Disciplinary Commission of the Flemish Ministery of 8 June 2006, and to impose a lifetime ban on the Athlete.

CAS 2002/O/401 IAAF vs USATF

CAS 2002/O/401 International Association of Athletics Federations (IAAF) / USA Track & Field (USATF)

• Athletics
• Interpretation of the IAAF rules
• Obligation for USATF to furnish the results of positive tests to the IAAF
• Validity of the USATF confidentiality regulation

1. The IAAF Rules are to be read as resolutions adopted by and binding upon all Members, including USATF. Where the rules and regulations of a Member do not conform with or are wider than those of the IAAF, it is the latter which prevail. The IAAF Rules during the relevant period did require that USATF provide the IAAF with the results of positive tests and copies of decisions of domestic panels exonerating athletes of doping offences, as well as related material.

2. The Panel finds that there are valid reasons why the information which the IAAF seeks in relation to the thirteen athletes concerned with this arbitration need not be disclosed to it by USATF. Although the meaning of the IAAF Rules remains relevant, the Panel‟s answer turns on the facts and circumstances. A very telling circumstance is the IAAF‟s persistent inability, or simple failure, or, indeed, refusal, throughout the period 1996 to 2000 to identify the particular IAAF Rules allegedly violated by USATF‟s confidentiality policy, to articulate clearly a position concerning the supposed illegitimacy of that confidentiality policy or to take some positive action against USATF to compel disclosure. It allowed the issue to drag on for years leading USATF to believe that it had discretion to make contractual promises of confidentiality to those athletes it tested domestically.

3. Support for USATF‟s position can be found in various CAS decisions, including the AEK Athens case, in which it is enunciated that “Where the conduct of one party has led to legitimate expectations on the part of a second party, the first party is estopped from changing its course of action to the detriment of the second party”. The concept of legitimate expectations – more particularly, the concept of protecting athletes‟ legitimate expectations – has repeatedly been recognized by the CAS, for example, in the USA Shooting, Watt and Prusis. Underlying all these decisions lies the notion of fairness.

4. The unique facts and circumstances of this case constitute a valid and compelling reason why USATF should not be required to disclose the information in question to the IAAF, notwithstanding the proper interpretation of the relevant IAAF Rules.

On 29 September 2000, further to allegations made during the 2000 Olympic Games in Sydney, Australia, that USATF "had concealed information about US athletes who may have tested positive for the use of performance enhancing drugs," USATF appointed an Independent Review Commission, chaired by Professor Richard McLaren (the "McLaren Commission") which issued its report on 11 July 2001.

The second circumstance to be noted concerns the transfer by USATF of all responsibility for doping control and related disciplinary proceedings to the independent United Sates Anti-Doping Agency ("USADA") in October 2000. Since that time, it is USADA, not USATF, which tests athletes both in and out-of-competition, analyses the results, notifies athletes of positive tests and adjudicates such disputes as may arise; and unlike the USATF regulation previously in force, USADA's Protocol for Olympic Movement Testing provides for disclosure of domestic drug tests to the IAAF during the adjudicative process.

(A) The IAAF are in dispute with USATF over the obligation of USATF under IAAF Rules to disclose to the IAAF the results of "positive tests" conducted by or on behalf of USATF; to disclose the determinations of Hearing Panels convened by USATF in cases where athletes have been exonerated of a Doping Offence; and to disclose the material underlying such positive results and/or determinations of
USATF Hearing Panels.

(B) The IAAF contends that it requires such information in order to decide whether or not to exercise its power under IAAF Rule 21.3(ii) to refer such cases for review by its Arbitration Panel (or CAS), where the IAAF believes in the conduct or conclusions of such a hearing the relevant tribunal of the Member has misdirected itself or otherwise reached an erroneous conclusion.

(C) USATF contends that disclosure of domestic doping control results is not required by IAAF Rules or any other legal constraints, and is neither required nor permitted by the US laws, rules, regulations and agreements to which USATF is subject. USATF also contends that in any event the information requested by the IAAF cannot be disclosed because it would violate the legal and personal rights of the athlete. USATF further contends that the IAAF has no authority to review such domestic doping control cases.

(D) The dispute relates to a failure by USATF to disclose the information in (A) above during the period 1 October 1996 to a date to be determined by mutual agreement of the parties.

(E) The facts will be set out in the Statements of Case to be filed by the parties to the dispute.

In the opinion of the CAS Panel, based on its appreciation of the evidence as a whole, the unique facts and circumstances of this case constitute a valid and compelling reason why USATF should not be required to disclose the information in question to the IAAF, notwithstanding the proper interpretation of the relevant IAAF Rules. In the circumstances, and as requested by USATF, the Panel explicitly refrains from applying the relevant IAAF Rules, as interpreted, to the thirteen cases at issue in these proceedings.

Therefore on 10 January 2003 the Panel decides and orders as follows, unanimously with respect to the first question and by majority with respect to the second question and the issue of costs:

1. QUESTION (i) set out in paragraph 1.1 of the Arbitration Agreement dated 10 July 2002 is answered in the affirmative;

2. QUESTION (ii) set out in paragraph 1.1 of the Arbitration Agreement dated 10 July 2002 is also answered in the affirmative;

3. The costs of the arbitration up to the date of the present award, which will be calculated later by the CAS Court Office, shall be shared equally by the parties.

4. Each party shall bear all of its own legal and other costs incurred in connection with this arbitration.

The issues to be resolved between IAAF and USATF by the CAS Panel are simply stated in the Arbitration Agreement:

1.1 The IAAF and USATF agree to submit to arbitration the following issues:

(i) properly construed, at all material times did IAAF Rules provide that USATF was obliged:

(a) to furnish the results of positive tests to the IAAF;

(b) to provide the IAAF with copies of decisions of USATF Hearing Panels exonerating athletes of Doping Offences, and

(c) to provide the IAAF with the material it needs to decide whether or not to seek to have a Hearing Panel's decision reviewed by its own Arbitration Panel or CAS?

(ii) if IAAF Rules did so provide, is there any valid reason why USATF should not be required to comply with these Rules?

CAS 2007/A/1416 World Anti-Doping Agency (WADA) & International Association of Athletics Federations (IAAF) v. United States Anti-Doping Agency (USADA) & Lindsey Scherf

• Athletics
• Doping (failure to obtain an ATUE)
• No Significant Fault or Negligence in case of refusal to submit a doping control

There is no Significant Fault or Negligence in case errors made by the IAAF, and by USADA place the athlete in somewhat of a quandary, and where athlete’s subsequent error in judgment is a direct result of the errors made by agencies that should have provided better service to the athlete. Albeit the refusal to provide a sample, this case is a rare case in which exceptional circumstances exist and the athlete bears No Significant Fault or Negligence.

On 1 July 2007 the American Athlete Lindsey Scherf participated in the Australian Gold Coast Marathon and afterwards she refused to provide a sample. The Athlete knew the drug test would be positive for the medication Flovent, containing the substance Fluticasone she had used for her asthma without a valid TUE.

Previously in April 2007 the Athlete had applied for a TUE with the IAAF for the use of her medication on the advice of USADA. However in June 2007 the Athlete had still not received word from the IAAF about het TUE application.

The Athlete also could not stop timely using her Flovent medication because in the 3 weeks before the Marathon she had contracted a serious throat and lung infection.

Without a valid TUE and on advice of the USADA TUE Coordinator she checked with with officials of the Gold Coast Marathon to determine if there would be drug testing. She was advised that there had been no drug testing in the 3 previous years and it was considered unlikely that there would be a last minute drug test at this completion.

In August 2007 USADA had results management and it conducted an investigation into the facts in this case. It turned out that USADA was unaware that the Gold Coast Marathon was not an international event under the IAAF Rules and therefore the Athlete’s USADA TUE would have been valid for the Gold Coast Marathon on 1 July 2007.

At the conclusion of their investigation USADA offered the Athlete a 2 year period of ineligibility and a 1 year reduction in the period of ineligibility for exceptional circumstances. The Athlete accepted this sanction on 31 October 2007.

Hereafter in November 2007 WADA and IAAF appealed the USADA decision with the Court of Arbitration for Sport (CAS). WADA and IAAF requested the Panel to impose a more severe sanction on the Athlete because the Athlete had admitted that she hoped through her refusal for a less severe sanction than a sanction for testing positive.

WADA and IAAF contended that there are no grounds for No Significant Fault or Negligence since the circumstances in this case were truly not exceptional. Further they argued that alleged irregularities in the TUE procedure or uncertainty about the existence of a TUE can never justify a refusal to submit to sample collection.

USADA asserted that the Athlete had acted with some fault and that the errors of the IAAF and USADA did not excuse the Athlete’s fault in refusing to submit to doping control. However they did help to create a chain of events which on a balance of probabilities appear to have significantly mitigated the Athlete’s fault in refusing doping control.

The Athlete admitted the violation and argued that USADA had conducted an extremely thorough and detailed investigation prior to its finding that she was not significantly at fault and was not significantly negligent.

The Panel concludes that errors made by the IAAF, and by USADA placed the Athlete in somewhat of a quandary. Her subsequent error in judgment was as a direct result of the errors made by agencies that should have provided better service to the athlete.

The Panel finds that exceptional circumstances did exist in this case, and agrees that the Athlete bears No Significant Fault or Negligence, because her fault or negligence, when viewed in light of all the circumstances, was not significant in relation to her anti-doping rule violation.

The Panel would, however, wish to make it clear that this is a rare case in which an athlete who has failed or refused to provide a sample will be able to satisfy a CAS Panel that the sanction is to be reduced on the ground of No Significant Fault or Negligence. Such cases will not often occur.

Therefore the Court of Arbitration for Sport decides on 11 August 2007:

1.) The Appeal filed by WADA and the IAAF against a decision of the United States Anti-Doping Agency dated October 31, 2007, is dismissed.

(…)

4.) All other prayers for relief are dismissed.

CAS 2010/A/2083 UCI v/ Jan Ullrich & Swiss Olympic - Partial Award on Jurisdiction

Related cases:

• CAS 2010_A_2070 Antidoping Switzerland vs Jan Ullrich
  November 30, 2011
• CAS 2010_A_2083 UCI vs Jan Ullrich & Swiss Olympic
  February 9, 2012

Jan Ullrich, is a German former professional road cyclist resident in Switzerland. Among other achievements, Ullrich was the winner of the 1997 Tour de France and the gold medalist in the men’s individual road race at the Sydney 2000 Summer Olympic Games. Prior to the events in question in 2006, Ullrich was a member of the T-Mobile professional cycling team, a member of Swiss Cycling, and a UCI license-holder.

In 2004, the Spanish Guardia Civil and the Investigating magistrate no. 31 of Madrid opened an investigation that has come to be known as “Operation Puerto.” Pursuant to this investigation, on May 23, 2006 searches were carried out on two Madrid apartments belonging to a Spanish physician, Dr. Eufemiano Fuentes. Documents and other materials were seized from the apartments, including evidence of possible doping offences by athletes.

The Guardia Civil drafted a report (Report no 116) dated June 27, 2006, which made reference to certain of the materials seized from the apartments and showed that the Athlete had contact with Dr Fuentes. As a consequence of Report no 116 the International Cycling Union (UCI) requested Swiss Cycling to open disciplinary proceedings against the Athlete. In October 2006 the Athlete resigned his membership from Swiss Cycling and announced his retirement from professional cycling.

However on 30 January 2010 the Disciplinary Chamber of Swiss Olympic decided to close the case and the investigations against the Athlete because Ullrich was no longer member of the Swiss Cycling and they had no jurisdiction after he retired.

Hereafter in March 2010 the UCI appealed the decision of Swiss Olympic with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to annul and reform the decision of 30 January 2010 and to impose a lifetime ineligibility on the Athlete.

In these preliminary proceedings with CAS the Athlete argued that there is no arbitration agreement under Swiss Law that binds the parties to these proceedings, and that as a result CAS has no jurisdiction. By contrast the UCI submits that the jurisdiction of the CAS is established under Articles 6(1) and 6(2) of the ICA.

The Athlete disputed that he agreed to any arbitration provision through the completion of the application form submitted to Swiss Cycling. In essence, his argument focuses on the nature of his relationship to the UCI.

He pointed out that his application was for membership in Swiss Cycling, not the UCI, and that he has never been a member of UCI. He contended that absent membership (or even an application for membership in an organization), he could not have agreed to the rules of an association to which he did not belong.

The Panel is of the view that, despite the absence of formal membership in the UCI, the Athlete's rights and obligations under his licence clearly created a special relationship between himself and the UCI that is akin to membership. Furthermore the Panel establishes that there is a valid arbitration agreement under Article 6(1) of the ICA.

Therefore the Court of Arbitration for Sport decides on 2 March 2011 that:

1.) The CAS acknowledgea its jurisdiction over the appeal submitted by the UCI against the Decision.

2.) The objection submitted by Mr. Jan Ullrich that the CAS has no jurisdiction to hear this matter is dismissed,

3.) The costs connected with Mr. Jan UlIrich's objections related to junsdiction and with the present partial award shall be determined in the final award.

CAS 2011/A/2414 Zivile Balciunaite v Lithuanian Athletics Federation & International Association of Athletics Federations

• Athletics
• Doping (testosterone)
• Transformation of the endogenous substance to an exogenous substance due to bacterial contamination
• Effect of physical stress and endocrinal disorders/internal hormonal imbalance on testosterone
• Performance-enhancing effect of testosterone and relevance of that effect regarding a non-specified substance
• Standard of “utmost caution”

1. Samples for doping controls are always collected under non-sterile conditions. If only two hours elapsed between the collection and the delivery of samples to the laboratory, the sample being transported at all times in a refrigerated package and received intact by the laboratory, it is unlikely that bacteriological degradation could have occurred. Even if bacterial activity had occurred with significant changes in measured steroid profiles, this would be irrelevant: when the sample is analysed through the IRMS and the result demonstrated the exogenous origin of the substance contained in the sample, it is scientifically not possible that the bacterial contamination and activity could have transformed the origin of the endogenous substance to an exogenous substance.

2. A marathon race and similar physical stress may not lead to a hormonal imbalance and severe cellular damages in an athlete’s body. In any case, nothing related to endocrinal disorders/internal hormonal imbalance and any possible influence on testosterone is found in the literature. And even if an increase in the production of testosterone would result from an internal hormonal imbalance, this would be without any influence on an IRMS test result clearly showing the presence of exogenous testosterone. Further, there is no scientific evidence of any influence of female athletes’ endocrinal disorders/internal hormonal imbalance on testosterone values. Even severe physical training does not have any influence on testosterone.

3. The use of testosterone results in helping to recover faster and better as well as to stabilize the haematocrit. Therefore, at least indirectly, testosterone enhances the performance. In any case, as it is not a specified substance within the meaning of Article 10.4 of the World Anti-Doping Code, it is irrelevant whether it enhances or is capable to enhance the performance. Exogenous testosterone is a forbidden substance.

4. In order to show “utmost caution”, the athlete must establish, to the satisfaction of the adjudicating panel, that s/he took all of the steps that could reasonably be expected of him/her to avoid ingesting prohibited substance and it would be unreasonable to require him/her to take any other steps. The athlete is responsible for the presence of a prohibited substance in her bodily specimen.

In August 2010 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Lithuanian Athlete Zivile Balciunaite after her A and B samples tested positive for the prohibited substance Testosterone.

Consequently the Disciplinary Commission of the Lithuanian Athletics Federation (LAF) decided on 5 April 2011 to impose a 2 year period of ineligibility on the Athlete, starting on 6 September 2010.

Hereafter in April 2011 the Athlete appealed the LAF Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.

The Panel assessed and addressed the following issues raised by the Athlete:

• Was there a violation of the Athlete's fundamental rights during the B sample opening/testing?
• Is the LAF's letter of 7 December 2010 to be considered as decision made based on the Athlete's hearing of 1 December 2010?
• Was the Athlete deprived of the right to a timely and fair hearing?
• Did the experts from the LAF consider all of the Athlete's arguments?
• Did the LAF fail to prove the Athlete's doping offence?
• What were the impact of Athlete's medical situation and the special circumstances of the sample collection?
• Is it true that Testosterone does not help in long distance running?
• Existence of conditions to claim there was no fault or negligence or that there was no significant fault or negligence by the Athlete.

The Panel determines that:

• The Athlete failed to provide any realistic explanation how the exogenous Testosterone had entered her system.
• It is not possible to establish that the Athlete exercised with utmost caution.
• The Athlete acted at least in a negligent way and is fully responsible for what happened.
• The elimination of the Period of Ineligibility is not possible in the case at hand.
• The Athlete cannot benefit from a reduction of her sanction based on her allegation that she bears no significant fault or negligence.
• The Athlete’s positive doping test result and her anti-doping rule violation is confirmed and consequently a ban of two years.

Therefore the Court of Arbitration for Sport decides on 30 March 2012:

1. The appeal filed by Mrs. Zivile Balciunaite against the decision no. 3 of the Disciplinary Commission of the Athletic Federation of Lithuania, dated 5 April 2011, is dismissed.

2. The decision no. 3 rendered on 5 April 2011 of the Disciplinary Commission of the Athletic Federation of Lithuania is confirmed, including the ban of two years, starting on 6 September 2010.

3. (…).

4. (…).

5. All other motions or prayers for relief are dismissed.

In July 2006 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Athlete Floyd Landis after his A and B samples tested positive for the prohibited substance testosterone with a T/E ratio above the WADA threshold and he was fired from the Phonak team on 5 August 2006.

As a result on 20 September 2007 the American Arbitrators Association Panel decided to impose a 2 year period of ineligibility on the Athlete. This sanction was uphold by the Court of Arbitration for Sport on 30 June 2008 when appealed by the Athlete in October 2007.

Previously Mr Richard Pound, IOC member and Chairman of the World Anti-Doping Agency (WADA) made comments in 4 press articles about Floyd Landis at the time that he was accused of an anti-doping rule violation.

In May 2007 the Athlete file a complaint against Mr. Richard Pound and against WADA with the Ethics Commission of the International Olympic Committee.

The Athlete accused Mr Richard Pound of being in breach of the fundamental principles of the Olympic Charter, the World Anti-Doping Code and the IOC Code of Ethics, and in particular of having failed to:
- respect the rights of athletes;
- safeguard the dignity of individuals involved in the Olympic Movement;
- abide by his duty not to engage in actions causing mental injury to the participants;
- scrupulously respect the provisions of the World Anti-Doping Code and the related rules and regulations, and their obligations not to harass the participants.

The Ethics Commission holds that only one article quoting Mr. Richard Pound needs to be taken into consideration. Here the Ethics Commission observes that, at the time that Mr Richard Pound made his comment to the journalist from Bicycling magazine, the anti-doping rule violation by Mr Floyd Landis had not been established, as the case was still pending; he was merely accused of an anti-doping rule violation. The Ethics Commission thus notes that, in June 2007, Mr Floyd Landis still benefited from the fundamental principle of being “presumed innocent”.

The Ethics Commission notes that it lacks jurisdiction with regard to the part of the complaint against WADA, pursuant to the World Anti-Doping Code.

Therefore the IOC Ethics Commission decides on 21 January 2008:

1.) to declare that it has no jurisdiction with regard to the complaint against the World Anti-Doping Agency, pursuant to the World Anti-Doping Code;
2.) to recommend that the IOC Executive Board remind Mr Richard Pound, IOC member, of the need to comply with the duty of reserve indispensable to respecting Olympism when making public statements which could affect the reputation of others, in particular when an anti-doping rules violation by an athlete has not yet been established.

CAS 2009/A/1755 Adam Seroczynski v. International Olympic Committee (IOC)

Related case:

IOC 2008 IOC vs Adam Seroczynski
December 11, 2008

• Canoeing
• Doping (clenbuterol)
• Procedural rights of the athlete regarding the opening of the
• B sample
• No minimum threshold for clenbuterol
• Strict liability and automatic disqualification

1. The fact that the athlete could not attend to the opening of the B sample does not constitute a violation of the athlete’s procedural rights as such, so long as the athlete was informed of the date and time of the opening of the B sample, did not request a postponement and was represented to it.

2. The 2008 Prohibited List does not set a minimum threshold for clenbuterol. A qualitative – and not quantitative – identification is required, and the proven presence of clenbuterol constitutes an anti-doping rules violation.

3. According to the applicable regulations on automatic disqualification and based on the principle of strict liability, the athlete’s results in a competition in which the anti-doping violation occurred must be disqualified, without any further consideration on his fault or negligence.

Mr. Adam Seroczynski is a Polish Athlete competing in the Kayak event at the 2008 Beijing Olympic Games.

In September 2008 the International Olympic Committee (IOC) reported an anti-doping rule violation against the Athlete after his A and B samples, tested positive for the prohibited substance Clenbuterol. 

Consequently on 11 December 2008 the IOC Disciplinary Commission decided to disqualify the Athlete including his results obtained at the Kayak double (K2) 1000m Men event, where he had placed 4th.

Hereafter in December 2008 the Athlete appealed the IOC decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to annul the Appealed Decision and to restore the results obtained at the Kayak event.

The Athlete denied the intentional use of Clenbuterol and disputed the reliability of the test results. He believed that food contamination or meat contamination had caused the positive test results. Further he claimed that he could not attend the opening of the B sample and because of this his test results should be disregarded.

The Panel finds that the presence of a prohibited substance has been established in the Athlete's samples and accordingly that he committed an anti-doping rule violation. The Panel determines that the Athlete was duly notified in September 2008 and that he was properly represented at the opening of his B sample in Beijing.

Following assessment of the evidence the Panel deems that the test results were valid. Furthermore there was no evidence of an alleged false positive nor evidence that food contamination had caused these postive test results.

Therefore the Court of Arbitration for Sport decides on 20 August 2009:

1.) The appeal of the Athlete, Adam Seroczynski, is rejected.

2.) The decision issued by the IOC Disciplinary Commission on December 11, 2008 is upheld.

3.) The Athlete, Adam Seroczynski, is disqualified from the Kayak double (K2) 1000m Men event, where he had placed 4th and his diploma in this event shall be withdrawn.

4.) All other motions or prayers for relief are dismissed.

5.) This award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss francs) paid by Adam Seroczynski, which is retained by CAS.

6.) Each party shall otherwise bear its own legal costs and all other expenses incurred in connection with this arbitration.

CAS 2011/A/2537 WADA v/ Toni Milanovic & Croatian Muay Thai Federation

On 28 July 2010 the Croatian Muaythai Federation decided to impose a 1 year period of ineligibility on the Athlete Toni Milanovic after he tested positive for the prohibited substances Methylhexaneamine (1,3-dimethylamylamine), Boldenone and Salbutamol.

Hereafter in August 2011 the World Anti-Doping Agency (WADA) appealed the Croatian Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealled Decision and to impose a sanction on the Athlete between 2 and 4 years.

During the CAS Proceedings the Croatian Muaythai Federation acknowledged that it had rendered an erroneous decision and that it shall start proceedings in order to render a new decision against the Athlete.

Thereupon in March 2012 WADA requested the Council of CAS to withdraw its appeal following the Croatian Muaythai Federation had set aside the Appealed Decision and imposed a 4 year period of ineligibility on the Athlete.

Therefore on 30 August 2012 the Court of Arbitration for Sport pronounces:

1.) The procedure CAS 2011/A/2537 WADA v/ Tom Milanovic & Croatian Muay Thai Federation is terminated and deleted from the CAS roll.

2.) The Appellant shall bear the costs of the present procedure in an amount of CHF 2394.- (two thousand three hundred ninety-four Swiss francs).

3.) Respondent 2 shall bear the costs of the present procedure in an amount of CHF 2394.- /788.- (two thousand three hundred ninety-four- Swiss francs).

4.) Each party shall bear its own legal costs.