CAS 2011/A/2435 World Anti-Doping Agency (WADA) v. Gert Thys, Athletics South Africa (ASA) & South African Institute for Drug-Free Sport (SAIDS)

Related cases:

• CAS 2009/A/1767 Gert Thys vs Athletics South Africa
  July 24, 2009
• Swiss Federal Court 4A_456/2009 Athletics South Africa vs Gert Thys
  July 24, 2009
  
  

In March 2006 the IAAF has reported an anti-doping rule violation against the South-African Athlete Gert Thys after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

After notification by Athletics South Africa (ASA) a provisional suspension was ordered. Following several adjourments the ASA Tribunal decided to impose a period of ineligibility on the Athlete from 25 april 2006 (date of the provisional suspension) until 11 December 2008 (date of the Tribunal decision).

Hereafter the Athlete appealed the ASA Tribunal decision of 11 December 2008 with the Court of Arbitration for Sport (CAS).
On 24 July 2009 the CAS Panel (case 2009/A/1767) decided to set aside the Appealed Decision and to exonerated the Athlete of any doping violation.

Thereupon the ASA appealed the CAS 2009/A/1767 decision with the Swiss Federal Court. On 3 May 2009 the Swiss Federal Court ruled that CAS had no jurisdiction to decide the Athlete’s appeal. The Swiss Federal Court determined that an appeal against the ASA Decision had to be addressed to SAIDS, and not to CAS.

As a result the Athlete filed in June 2010 an appeal with SAIDS  against the ASA Decision. However after numerous requests made by the Athlete, SAIDS failed to convene a hearing panel.

Ultimately in May 2011 the World Anti-Doping Agency (WADA) decided to appeal the ASA decision of 11 December 2008 with the Court of Arbitration for Sport (case 2011/A/2435)

The CAS Panel concluded eventually that:

1.) an adverse analytical finding of 19-norandrosterone in the urine provided by Mr Thys on 12 March 2006 has been established;

2.) a departure from ISL has been demonstrated; and

3.) ASA and/or SAIDS have failed to prove to the Panel’s comfortable satisfaction that the departure from the ISL did not undermine the validity of the adverse analytical finding.

Therefore the Court of Arbitration for Sport decides on 30 November 2011 that:

1.) The appeal filed by the World Ant-Doping Agency on 4 May 2011 against the decision issued by the tribunal of Athletics South Africa on 11 December 2008 is admissible.

2.) The decision issued by the tribunal of Athletics South Africa on 11 December 2008 is set aside.

3.) (...)

CAS 2009/A/1767 Thys v. Athletics South Africa

Related cases:

• Swiss Federal Court 4A_456/2009 Athletics South Africa vs Gert Thys
  July 24, 2009
• CAS 2011_A_2435 WADA vs Gert Thys & Athletics South Africa & SAIDS
  November 30, 2011
  
  

In March 2006 the IAAF has reported an anti-doping rule violation against the South-African Athlete Gert Thys after his A and B samples tested positive for the prohibited substance 19-norandrosterone.

After notification a provisional suspension was ordered and after several adjourments the Tribunal of the Athletics South Africa (ASA) decided to impose a period of ineligibility on the Athlete from 25 april 2006 (date of the provisional suspension) until 11 December 2008 (date of the Tribunal decision).

Hereafter in January 2009 the Athlete appealed the ASA Tribunal decision of 11 December 2008 with the Court of Arbitration for Sport (CAS).

The Athlete asserted that an departure of the ISL had occurred in the Seoul Laboratory. He claimed that the same analyst had tested both A and B samples and that this departure of the ISL would invalidate the test results.

Following assessment of the facts of this case the Panel concludes that:

• a.) The ASA has established an adverse analytical finding of 19-norandrosterone in the urine provided by Mr.Thys on 12 March 2006;
• b.) Mr. Thys has successfülly demonstrated the departure from ISL 5.2.4.3.2.2; and
• c.) The ASA has failed to prove to the Panel's comfortable satisfaction that the departure from 5.2.4.3.2.2 did not undermine the validity of the adverse analytical finding.

Therefore on 24 July 2009 the CAS Panel decides that:

1.) It has jurisdiction to hear the appeal filed by Gert Thys on 7 January 2009.

2.) The appeal of Gert Thys is upheld.

3.) The decision of Athletics South Africa of 11 December 2008 is set aside.

4.) Gert Thys is exonerated of any doping infraction and is eligible to compete without any prior reinstatement testing.

5.) The prize money, income and benefits derived from the participation of Gert Thys in the Seoul Marathon in March 2006 shall not be forfeited.

6.) The award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss Francs) paid by Gert Thys, which is retained by the CAS.

7.) Athletics South Africa shall pay Gert Thys a contribution towards his legal fees in the amount of CHF13,000 (thirteen thousand Swiss Francs), within 30 (thirty) days of notification of this award”.

Hereafter ASA appealed the CAS decision of 24 July 2009 with the Swiss Federal Court (case 4A_456/2009).

Thereupon in in May 2011 WADA appealed the ASA Tribunal decision of 11 December 2008 with the Court of Arbitration for Sport. (case CAS 2011/A/2435).

CAS 2004/O/645 USADA vs Tim Montgomery

CAS 2004/O/649 USADA vs Chryste Gaines

Related cases:

• CAS 2004_O_645 USADA vs Tim Montgomery & IAAF
  December 13, 2005
• CAS 2004_O_645 USADA vs Tim Montgomery - Award on Jurisdiction
  February 9, 2005

1. On 9 November 2004, the Panel confirmed in writing various procedural orders rendered orally during a procedural hearing on 1 November 2004. As agreed during the 1 November 2004 hearing and as set out in the Panel's 9 November 2004 Order, a detailed procedural timetable for the conduct of these proceedings was established.

2. On 24 December 2004, the Panel issued an Award on Jurisdiction, without reasons, in which it affirmed both USADA's authority to bring these cases against Respondents and its own jurisdiction to hear the cases. The Panel's reasons in support of that award were issued on 9 February 2005.

3. included in the procedural timetable confirmed on 9 November 2004 was a procedure for the briefing and hearing, as preliminary issues, of Respondents' motions concerning certain evidentiary matters as well as concerning the dismissal of certain of the claims brought against them by USADA.

Hereafter both parties filed their submissions and thereupon a hearing on the parties' evidentiary and procedural motions was held in order to settle these issues.

Accordingly on 4 March 2005 the Court of Arbitraton:

1.) Confirms the procedural directions set out above in Part II.A (paragraphs 8 et seq) of the present Decision;

2.) Remains seized and reserves judgement in respect of Respondents' Motions to Exclude Certain Exhibits;

3.) Grants Respondent Gaines' request for the dismissal of USADA's claims against her for alleged violations of lAAF Rule 56.4;

4.) Dismisses without prejudice all other elements of Respondents' Motions to Dismiss Certain Claims and Charges; and

5.) Declares that the costs associated with Respondents' Motions that are the subject of the present Decision will be taken into account in the final award to rendered by the Panel in each of their cases.

CAS 2012/A/2779 International Association of Athletics Federation (IAAF) v. Confederação Brasileira de Atletismo (CBAt) & Simone Alves da Silva

• Athletics (10’000 m)
• Doping (recombinant EPO)
• Filing of new evidence in appeal
• First or second violation of the anti-doping regulations

1. Pursuant to Article R57 of the CAS Code, a panel has the power to review the facts and the law. In addition, Article R51 of the CAS Code allows the appellant to file all exhibits and specification of other evidence it intends to rely on together with the Appeal Brief. These provisions therefore entitle any party to file evidence which was not filed in the proceedings leading to the appealed decision.

2. By virtue of taking part in a competition organised by a national federation, the athlete falls under the jurisdiction of that federation’s judicial bodies. In case the latter sanction the athlete with a suspension for infringing the anti-doping regulations, this must count as a first anti-doping offense rather than as a mere administrative decision. Any subsequent infringement must therefore count as a second anti-doping offense.

In October 2011 the Brazilian Athletics Confederation (CBAt) reported an anti-doping rule violation against the Athlete Simone Alves da Silva after her A and B samples tested positive for the prohibited substances Recombinant Erythropoietin (RhEPO).

Previously in September 2010 the Athlete was sanctioned for 3 months after she tested positive for the substance Oxilofrine.

However on 23 January 2012 the CBAt Disciplinary Committee decided to clear the Athlete from any anti-doping rule violation. Thereupon on 27 February 2012 the Brazilian Superior Court of Sport Justice (STJD) decided to dismiss CBAt's appeal.

Hereafter in April 2012 the International Association of Athletics Federations (IAAF) appealed the STJD Decision with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the Appealed Decision and to impose a sanction of 6 years for the Athlete's second anti-doping rule violation.

The Athlete denied ingesting recombinant RhEPO. She reiterated that it is possible that the samples were contaminated as a result of an erroneous sample collection process and also due to lack of credibility in the documents which accompanied the laboratory tests.

The Sole Arbitrator assessed and addressed the following issues raised by the parties:

• Whether the Athlete committed an anti-doping rule violation
• Were there errors and violations committed in the collection of the Athlete’s sample? In case of the affirmative, could these errors and violations reasonably have led to the adverse analytical findings?
• Does the handwriting error committed by the Laboratoire de Contrôle cast doubt on the identification of the Athlete vis-a-vis the results of the samples?
• Depending on the findings on the above mentioned issues, should the Athlete be sanctioned? In case of the affirmative, what is the relevant sanction?

The Sole Arbitrator determines that:

• The Athlete has failed to adduce expert evidence proving that any departure from the IST, ISL or Anti-Doping Regulations led, or would reasonably have led to the adverse analytical finding.
• The Athlete has failed to prove that the handwriting errors committed by the Laboratoire de Contrôle cast doubt on her identification vis-a-vis the results of the samples.
• The Athlete committed an anti-doping rule violation contrary to IAAF Rules 32.2.
• A deciding body has the discretion to choose between imposing a four, five or six year ban.

Therefore the Court of Arbitration for Sport decides on 31 January 2013 that:

1.) The appeal filed on 18 April 2012 by the International Association of Athletics Federation against the decision rendered by the Superior Tribunal de Justiça Desportiva do Atletismo on 27 February 2012 is partially upheld.

2.) Simone Alves da Silva is suspended for a period of 5 (five) years from the date of this award. Any provisional suspension served by Simone Alves da Silva from 14 October 2011 is credited against the 5 (five) year suspension.

3.) The entire results achieved by Simone Alves da Silva at the Troféu Brasil event held on 3 August 2011 or in any other competition she took part in after 3 August 2011 are disqualified, including forfeiture of any medals, points and prizes.

(…)

7.) All other and further claims or prayers for relief are dismissed.

• CAS 2008/A/1718 IAAF v. All Russia Athletic Federation & Olga Yegorova
• CAS 2008/A/1719 IAAF v. All Russia Athletic Federation & Svetlana Cherkasova
• CAS 2008/A/1720 IAAF v. All Russia Athletic Federation & Yuliya Fomenko
• CAS 2008/A/1721 IAAF v. All Russia Athletic Federation & Gulfiya Khanafeyeva
• CAS 2008/A/1722 IAAF v. All Russia Athletic Federation & Tatyana Tomashova
• CAS 2008/A/1723 IAAF v. All Russia Athletic Federation & Yelena Soboleva
• CAS 2008/A/1724 IAAF v. All Russia Athletic Federation & Daiya Pishchalnikova

CAS 2008/A/1718-1724 International Association of Athletics Federation (IAAF) v. All Russia Athletics Federation (ARAF) & Olga Yegorova, Svetlana Cherkasova, Yuliya Fomenko, Gulfiya Khanafeyeva, Tatyana Tomashova, Yelena Soboleva & Darya Pishchalnikova

• Athletics
• Doping (manipulation of samples)
• Applicable law
• CAS power of review
• Proof of tampering with the doping control process according to the applicable standard
• Establishment of an unbroken chain of custody
• Validity and reliability of the testing procedure conducted by a laboratory non-accredited by WADA
• Athlete’s right to be given a reasonable opportunity to observe the opening and testing of a B sample
• Determination of the applicable sanction

1. It follows from the clear wording of the World Anti-Doping Code (WADC) and from constant CAS jurisprudence that the WADC is not directly applicable to athletes. Furthermore, it follows that the associations have autonomy to regulate their athletes – subject to mandatory provisions of law – at their discretion. By issuing its anti-doping rules, the IAAF has exercised this discretion exhaustively and exclusively without any possibility that other regulations could apply unless there was a specific reference in the IAAF Rules.

2. Based on the clear wording of the IAAF Rules as well as on Art. R57 of the CAS Code, not only can a CAS panel review the facts and the law contained in the challenged decisions but it can as well replace those decisions if the panel finds that the facts were not correctly assessed or the law was not properly applied leading to an “erroneous” decision. The procedure before CAS is indeed a de novo appeal procedure, which means that if the appeal is admissible, the whole case is transferred to CAS for a complete rehearing with full devolution of power in favor of CAS. CAS is thus only limited by the requests of the parties (the so called “petita”).

3. Under IAAF Rules, the use or attempted use of a prohibited substance or prohibited method and tampering or attempting to tamper, with any part of the doping control process or its related procedures have to be established by the IAAF to the comfortable satisfaction of the panel, bearing in mind the seriousness of the allegation. In this respect, DNA analysis is a reliable evidentiary means. Circumstantial evidence of significant probative value can also support the inference of tampering which can be drawn from the DNA results. Motive is one of the items of circumstantial evidence which is often admitted to establish guilt. In this regard, the findings that several athletes had blood profiles indicative of the long term use of rh-EPO or other forms of blood doping does provide a motive for tampering with the out of competition samples, namely a need to disguise the use of prohibited substances. The lack of any remark by the DCOs clearly cannot be considered as proof that no tampering took place at the moment of the sample collection. In the context, the natural, if not irresistible inference, is that the athletes have somehow arranged to have the urine of third persons used in their out of competition testing.

4. An unbroken chain of custody can be established to the comfortable satisfaction of the panel bearing in mind the seriousness of the allegation by the sampling and transportation evidence, namely the documentation provided by the IAAF, the evidence, both written and oral of the DCOs and the members of IDTM in charge of the transportation of the samples, as well as the evidence of the competent laboratories.

5. A WADA-accredited laboratory benefits from the presumption of compliance with applicable procedure. On the contrary a non WADA-accredited cannot benefit from the presumption of proper application of the custodial procedures. However, the fact that a laboratory in charge of DNA testing procedures acts in criminal cases for the Swiss Confederation, that it is ISO 7025 accredited, and that the officers within the said laboratory know very well the measures to be taken in order to avoid any DNA contamination eliminate any doubts about the reliability of DNA testing procedures.

6. The athlete’s right to be given a reasonable opportunity to observe the opening and testing of a B sample is of sufficient importance that it needs to be enforced, even in situations where all of the other evidence available indicates that an athlete committed an anti-doping violation. However, a distinction must be made between the results management process applicable to the case of an anti-doping rule violation detected through an adverse analytical finding and one where there is no such finding. Where there is no adverse analytical finding the applicable results management process does not provide for the athlete’s right to request the analysis of the B sample.

7. The length of the sanction depends on the particular facts of the case. Based on the structure of the IAAF rules as they stood at the relevant time and the CAS jurisprudence, the trend for a first offense with tampering seems to be a two years period of ineligibility. Depending on the attitude of the athlete and the nature and complexity of the scheme set in place, a tribunal obviously may increase the sanction. The circumstances that justify an increase must be serious. In addition, there is an upper limit for an increase of the sanction. Contrary to what the wording of the provision might suggest, the upper limit for the length of a sanction for a “standard infraction” must not exceed the lower limit of those anti-doping violations the IAAF rules consider to be particularly serious, ie 4 years of ineligibility. This follows from the overall context of the IAAF provisions on ineligibility.

In March 2007, the IAAF started to investigate the possible manipulation of samples collected under its out of competition testing program in Russia. In particular, the IAAF decided to compare the DNA profiles of out of competition urine samples that had been collected from selected Russian athletes with the DNA profiles of “in competition” urine samples collected from the same athletes in conditions that could guarantee the origin of the samples.

As a result of these DNA analyses the IAAF reported in June 2008 anti-doping rule violations against the seven Russian Athletes for tampering with any part of the doping control process.

Consequently the Council of the All Russia Athletic Federation (ARAF) decided on 20 October 2008 to impose a 2 year period of ineligibility on these Athletes, staring on the date of the sample collection, i.e. between 7 April 2007 and 23 May 2007)

Hereafter in November 2008 the IAAF appealed the ARAF Decision of 20 October 2008 with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to annul the Appealed Decisions and to impose a more severe sanction.

The Athletes claimed that the ARAF did not produce sufficient evidence of anti-doping rule violations. They blamed ARAF for having relied exclusively on the allegations of the IAAF without conducting its own investigation in order to determine what really had happened with the samples and to determine whether the athletes were guilty of an anti-doping rule violation. They argued that no evidence existed as to any tampering attempt from the Athletes.

In this case the Panel assessed and addressed the evidence and the submissions of the parties regarding:

• Analystical results;
• Reliability of the DNA analysis;
• Supporting circumstantial evidence;
• Chain of custody of the samples;
• Validity and reliability of the testeing procedures; and
• Testing of B samples

The Tribunal deems that the anti-doping violations alleged against each of the Athletes have been established to its comfortable satisfaction, bearing in mind the seriousness of the allegation.

Therefore the Court of Arbitration for Sport decides on 18 November 2009:

1.) The appeals filed by The International Association of Athletics Federation are partially upheld.

2.) The Decisions of the ARAF Council dated 20 October 2008 regarding the Athletes Olga Yegorova, Svetlana Cherkasova, Yuliya Fomenko, Gulfiya Khanafeyeva, Tatyana Tomashova, Yelena Soboleva and Darya Pishchalnikova, are set aside.

3.) The Athletes Olga Yegorova, Svetlana Cherkasova, Yuliya Fomenko, Gulfiya Khanafeyeva, Tatyana Tomashova, Yelena Soboleva and Darya Pishchalnikova are sanctioned with a suspension of two years and nine months.

• a.) For Svetlana Cherkasova, Yuliya Fomenko, Gulfiya Khanafeyeva, Tatyana Tomashova, Yelena Soboleva and Darya Pishchalnikova the period of ineligibility shall start on 3 September 2008. However, credit is given for the period of ineligibility already served because of the provisional suspension dated 31 July 2008. The period of ineligibility, therefore, expires on 30 April 2011.
• b.) For Olga Yegorova the period of ineligibility shall start on 20 October 2008. However, credit is given for the period of ineligibility already served because of the provisional suspension dated 31 July 2008. The period of ineligibility, therefore, expires on 30 April 2011.

4.) All competitive results achieved by the Athletes since the out of competition testing are annulled, namely:

• a.) All competitive results achieved by Olga Yegorova since 7 April 2007
• b.) All competitive results achieved by Svetlana Cherkasova since 26 April 2007
• c.) All competitive results achieved by Yuliya Fomenko since 27 April 2007
• d.) All competitive results achieved by Gulfiya Khanafeyeva since 9 May 2007
• e.) All competitive results achieved by Tatyana Tomashova since 23 May 2007
• f.) All competitive results achieved by Yelena Soboleva since 26 April 2007
• g.) All competitive results achieved by Darya Pishchalnikova since 10 April 2007

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

(…).

CAS 2006/A/1099 Singh v/Athletics Federation of India & lAAF

Related case:

CAS 2006_A_1099 Neelam Jaswant Singh vs Athletics Federation of India & IAAF
July 2, 2007

In August 2005 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Athlete Neelam Jaswant Singh after her A and B samples tested positive for the prohibited substance Pemoline.

Thereupon the Athletics Federation of India (AFI) opened disciplinary proceedings against the Athlete. Ultimately the AFI Disciplinary Tribunal decided on 24 April 2006 to impose a 2 year period of ineligibility on the Athlete.

Hereafter in June 2006 the Athlete appealed the AFI decision with the Court of Arbitration for Sport (CAS).

In this preliminary proceeding before the International Council of Arbitration for Sport (ICAS) the Athlete challenged the appointment of the proposed Sole Arbitrator regarding his independence as arbitrator.

Following assessment the ICAS Board concludes that the challenge brought by the Athlete against the Sole Arbitrator was not submitted in a timely manner in accordance with art. R34 of the Code and is therefore inadmissible.

Accordingly the Board of the International Council of Arbitration for Sport considers on 2 May 2007:

1.) The petition for challenge to the appointment of Mr Lin Kok Loh, filed on 16 February 2007 by Ms Neelam Jaswant Singh, is rejected.

2.) Mr Lin Kok Loh shall continue to act as the Sole Arbitrator in the case CAS 2006/A/1099 Singh v/Athletics Federation of India & IAAF.

3.) The present decision is pronounced without costs.

4.) The present decision is not subject to appeal.

CAS 2006/A/1099 Singh v/Athletics Federation of India & IAAF

Related case:

CAS 2006_A_1099 Neelam Jaswant Singh vs Athletics Federation of India & IAAF - Ruling ICAS on arbitrator
May 2, 2007

In August 2005 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Athlete Neelam Jaswant Singh after her A and B samples tested positive for the prohibited substance Pemoline. Thereupon the Athletics Federation of India (AFI) opened disciplinary proceedings against the Athlete.

After notification a provisional suspension was ordered. The Athlete filed a statement in her defence and she was heard for the AFI Disciplinary Tribunal. Following substantial delays in the proceedings ultimately on 24 April 2006 the AFI Disciplinary Tribunal by majority decided to impose a 2 year period of ineligibility on the Athlete.

Hereafter in June 2006 the Athlete appealed the AFI decision with the Court of Arbitration for Sport (CAS).

The Athlete alleged that many departures from the ISL had occurred in the procedures of the testing process in the WADA-accredited Helsinki Laboratory. She claimed that there had been tampering, manipulation, interpolation, obliteration and forgery.

In a preliminary proceeding before the International Council of Arbitration for Sport (ICAS) dismissed On 2 May 2007 the Athlete's challenge of the proposed Sole Arbitrator regarding his independence as arbitrator.

Furthermore in a second preliminary proceeding the Sole Arbitrator on 13 October 2006 dismissed the Athlete's application for a stay of execution of the 2 year suspension imposed on her by the AFI Disciplinary Tribunal on 24 April 2006.

In this case the Sole Arbitrator assessed and addressed the following issues:

• (a) Was the Disciplinary Tribunal of the AFI permitted to review its recommendation/order once it had been given on 13 March 2006? That is, does the doctrine of functus officio apply? Which is, once the DT of AFI had issued its purported exoneration in its 13 March Report, it became a final and binding award and the DT became functus offïcio, that is, its authority to act had ceased as its reference had terminated.
• (b) Was there abuse of process by the IAAF?
• (c) Did the Athlete commit an anti-doping rule violation?
• (d) If the Athlete did commit such a violation, what is the sanction?

In view of the evidence the Sole Arbitrator is in no doubt and comfortably satisfied that the Athlete committed an anti-doping rule violation because the mere presence of Pemoline, which is a prohibited substance, In the Athlete's urine sample is sufficient to constitute an anti-doping rule violation.

There is no WADA reporting threshold for Pemoline since Pemoline cannot be produced by the body endogenously. The Sole Arbitrator holds that the Athlete did not challenge this rather she chose to challenge on possible departures in the procedures of the testing process in their technical aspects.

The Sole Arbitrator concludes that the Athlete's technical objections in her attempt to establish breaches of procedures by the Helsinki Laboratory did not rebut the presumption. He deems that she failed to establish that a departure from the International Standard for Laboratories had occurred.

Therefore the Court of Arbitration for Sport decides on 2 July 2007:

1.) The appeal filed by the athlete, Ms NEELAM JASWANT SINGH on 2 June 2006 against a decision of the ATHLETICS FEDERATION OF INDIA is dismissed.

2.) Ms NEELAM JASWANT SINGH committed an anti-doping rule vioiation in contravention of Rule 32.2(a)(ii) of the INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS Rules and is declared to be ineligible for a period of two (2) years from 12 August 2005 to 11 August 2007.

3.) The award is rendered without costs, except for the CAS Court Office fee of CHF 500 (Five Hundred Swiss Francs) which had already been paid by Ms NEELAM JASWANT SINGH and which is retained by the CAS.

4.) Each party is to bear lts own costs.

CAS 2004/O/649 United States Anti-Doping Agency (USADA) v. G.

• 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 Chryste Gaines for participating in a wideranging doping conspiracy allegedly implemented by the Bay Area Laboratory Cooperative (BALCO).

USADA charges that, for a period of several years, Ms. Gaines used various performance-enhancing drugs provided by BALCO. As noted, Ms. Gaines has never had a single drug test found to be a positive doping violation, but USADA’s charges are based, in part, on all of the urine tests at IOC-accredited and non-IOC-accredited laboratories that she has had in recent years.

USADA also relies, among other things, on documents seized by the U.S. government from BALCO that have been provided to USADA; statements made by BALCO officials; and other documents.

According to USADA, BALCO was involved in a conspiracy the purpose of which was the distribution and use of doping substances and techniques that were either undetectable or difficult to detect in routine drug testing. BALCO is alleged to have distributed several types of banned doping agents to professional athletes in track and field, baseball and football. Among these 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 antidoping 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 Ms Gaines committed a doping offence. It has been presented with strong, indeed uncontroverted, evidence of doping by the Athlete, in the form of an admission contained in her statements made to W. On this basis, the Tribunal finds Respondent guilty of a doping offence.

On 13 December 2015 the Panel unanimously finds and orders as follows:

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 the IAAF Rules for two years commencing as of 6 June 2005, including her 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 she would have been entitled by virtue of her appearance and/or performance at any athletics meeting occurring between 30 November 2003 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.

• CAS 2008/A/1461 Gatlin v/ USADA
• CAS 2008/A/1462 lAAF v/ USATF & Gatlin
• CAS 2008/A/1461 Justin Gatlin v. United States Anti-Doping Agency (USADA)
• CAS 2008/A/1462 IAAF v. USA Track & Field (USATF) & Justin Gatlin
  
  

Related cases:

• AAA 2001 No. 30 190 00546 01 USADA vs Justin Gatlin
  May 1, 2002
• AAA 2007 No. 30 190 00170 07 USADA vs Justin Gatlin
  December 31, 2007
• AAA 2007 No. 30 190 00170 07 USADA vs Justin Gatlin - Dissenting Opinion
  December 31, 2007

• Athletics
• Doping (amphetamines)
• Application of the World Antidoping Code
• Fault of the athlete
• Reduction of the sanction based on exceptional circumstances

1. The WADA Code does not apply as between a signatory organization and its members, unless the signatory organization has expressly incorporated the WADA Code into its own relevant rules. If only some provisions of the WADA Code have been incorporated into the own rules of the signatory organization, the WADA Code is not directly applicable to the case at stake.

2. If, under the IAAF Rules, a doping offense is a strict liability offense, fault is not a part of determining whether or not an offense was committed.

3. If the sanction to be imposed is based on the existence of two antidoping violations, the circumstances surrounding both violations must be taken into account when determining whether there are exceptional circumstances for the purposes of determining the period of ineligibility.

In May 2002 a sanction of 2 years was imposed on the Athlete Justin Gatlin related to the prescribed medication he used as treatment for his Attention Deficit Disorder.

On 3 July 2002 the lAAF Council granted the request for early reinstatement on the basis that it believed that Mr. Gatlin had a genuine medical explanation for his positive result. The effect of this reinstatement was that the Athlete served a provisional suspension of almost one year.

In May 2006 the United States Anti-Doping Agency (USADA) reported a second anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance Testosterone.

Consequently on 31 December 2007 the North American Court of Arbitration for Sport Panel (AAA) decided to impose a 4 year period of ineligibility on the Athlete. Hereafter in both the Athlete and the IAAF appealed the AAA Panel decision with the Court of Aribitration for Sport (CAS).

Undisputed in this appeal is that Mr. Gatlin’s positive test in 2006 constitutes an anti-doping rule violation. The main issue before this Panel is what ought to be the sanction for the 2006 Violation. The other important issue is what ought to be the start date for the sanction.

Following assessment the Panel concludes that the 2006 Violation was the Athlete's second anti-doping rule violation. Futhermore the invoked Americans with Disabilities Act does not prevent this Panel from imposing a sanction on the Athlete.

The CAS Panel finds that the totality of the circumstances surrounding the Athlete's 2001 case are such that they constitute exceptional circumstances for the purposes of determining the period of ineligibility. The Panel therefore decides that Mr. Gatlin’s period of ineligibility is to be four years.

Therefore the Court of Arbitration for Sport decides on 6 June 2008:

1.) The appeal filed by Mr Justin Gatlin on 21 January 2008 is rejected.

2.) The appeal filed by the IAAF on 23 January 2008 is upheld in part.

3.) The decision of the American Arbitration Association dated 31 December 2007 is amended by altering the commencement date of the period of ineligibility from 26 May 2006 to 25 July 2006 when Mr Justin Gatlin voluntarily accepted a provisional suspension.

4.) The decision of the AAA Panel is further amended by cancelling all of Mr. Gatlin’s competition results from the date of the sample collection on 22 April 2006 until the commencement of the period of ineligibility set out in paragraph 3 above.

5.) The balance of the decision of the AAA Panel will remain unaltered and the period of ineligibility of four years is confirmed.

(…)

Arbitrage Chambre ad hoc du TAS (JO Londres) 12/009 Nour-Eddine Gezzar c. Fédération Française d’Athlétisme (FFA)

CAS OG 12/09 M. Nour-Eddine Gezzar & Féderation Française d'Athlétisme (FFA)

• Athletics (middle distance)
• Request for suspension of the contested decisions and readmission to the Olympic Games
• Competence rationae personae of CAS
• Conditions for suspension of the execution of a sanction rationae personae vis-à-vis these entities

1. National Federations sending their athletes to the Olympic Games are subjected to the provisions of the Olympic Charter, including the arbitration clause therein. The National Olympic Committees (NOCs) and the International Federations (IFs) are also subjected to the Olympic Charter. As a consequence, the CAS Ad Hoc Division is competence rationae personae vis-à-vis these entities.

2. In order to decide whether or not to suspend the execution of a sanction, the following should be taken into consideration:

• (i) Whether the plaintiff is liable to serious and irreparable damage;
• (ii) When the plaintiff establish prima facie reasonable chances of success; and
• (iii) When interest prevails of the plaintiff liable to damage over the party that is liable to maintain the status quo.

These conditions are in principle cumulative, however CAS must have the necessary latitude to assess the overall situation using the above three criteria, while it is not necessary or useful to provide strict conditions which could create more difficulties than the actual legal certainty.

The ad hoc Division of the Court of Arbitration for Sport (CAS) rejected the urgent application filed by the French runner Nour-Eddine Gezzar (3000m steeple) who was challenging the provisional suspension which had been imposed on him by the French Athletics Federation (FFA) further to a positive doping test with EPO at the French Championships on 17 June 2012.

The decision of temporary suspension was issued by the FFA on 12 July 2012 and confirmed on 25 July 2012, then was confirmed again by the IAAF on 27 July 2012, which immediately extended it at the international level. Nour-Eddine Gezzar had been then removed from the French Athletics team for the London Olympics and his accreditation had been removed by the French NOC.

The athlete contended that some errors have been committed during the anti-doping control procedure and requested to be readmitted in the start list of the 3000m steeplechase heats of 3 August 2012.

The CAS Panel concludes that the athlete did not provide sufficient elements to persuade the Panel to lift the provisional suspension pronounced by the FFA and confirmed by the IAAF.
Therefore on 3 August 2012 the CAS Panel decides to reject the application of Nour-Eddine Gezzar,