© SWEDISH NATIONAL INSTITUTE OF PUBLIC HEALTH, ÖSTERSUND 2010

Forword
Just over 20 years ago, it became apparent that doping agents were also being used outside sports for reasons other than improving athletic performance. These problems ended up in the lime light, a law was passed to regulate use and authorities,
including the Swedish National Institute of Public Health (under a slightly different name at the time), devoted more focus to the issue for a few years. Activities conducted by society with regard to doping have since decreased. In order to take stock of the state of knowledge regarding the spread and consequences of doping as well as of what prevention efforts are being pursued, the
Swedish National Institute of Public Health conducted an inventory that resulted in the swedish version (R 2009:15) of the english translated review you have in hand. The topics covered include an overview of the medical, social medicine, sociological and legal aspects in the area.

The review begins by describing the law that regulates the handling of doping agents, as well as how users get hold of them. The discussion covers the current differences of opinion as to how widespread the use of doping agents is, and available data is presented for both the general population and individual groups. The underlying reasons for using doping agents are described, as well as the identified risk factors. In addition, available knowledge is presented with regard to patterns of use, including the mixed drug abuse that exists. The known physical, mental and social effects are presented, including the connection to aggressive behaviour and violence. The latter section of the report describes the prevention work under aimed at limiting use and concludes with a discussion of the treatment situation in Sweden.

• CAS 2007/A/1286 Johannes Eder vs International Olympic Committee
• CAS 2007/A/1288 Martin Tauber vs International Olympic Committee
• CAS 2007/A/1289 Jürgen Pinter vs International Olympic Committee
  
  CAS 2007/A/1286 Johannes Eder v. International Olympic Committee (IOC) & CAS 2007/A/1288 Martin Tauber v. International Olympic Committee (IOC) & CAS 2007/A/1289 Jürgen Pinter v. International Olympic Committee (IOC)
  
  

• Cross-country skiing
• Doping (intravenous infusion)
• Use and possession of a Prohibited Method
• Due process
• Prohibition of a second trial
• Standard of proof
• Legitimate acute medical treatment
• Concept of “possession”
• Concept of “acceptable justification”
• Complicity

1. Article R57 of the CAS Code gives a Panel full power to review the facts and the law of the case. As a result, the Panel hears the case de novo, without being limited by the submissions and evidence that was available to the previous instance. Accordingly, even if there had been a lack of due process in the proceedings before the previous instance, any such deficiencies are cured by the CAS in its hearing of the full appeal.

2. Article 4 of Protocol 7 of the ECHR is restricted in its application to criminal proceedings brought by the same State. Accordingly, it is inapplicable to arbitration proceedings.

3. There is very little practical difference between the “balance of probability” and “beyond a reasonable doubt” standards of proof, particularly when read with the phrase “bearing in mind the seriousness of the allegation which is made”. Pursuant to this interpretation and the preceding CAS jurisprudence, the Respondent is required to prove its allegations with evidence that is sufficient to comfortably satisfy the Panel in light of the seriousness and consequences of the allegations made against the Appellant.

4. The administration of saline infusions in order to ensure that haemoglobin levels are within the range provided by the applicable regulations is not “legitimate acute medical treatment”.

5. The concept of “possession” within the meaning of Article 2.6.1 of the IOC Anti-Doping Regulations must be considered in light of surrounding circumstances. Possession of a Prohibited Method is proved where it can be shown to the comfortable satisfaction of the Panel that, in all the circumstances, an athlete was in possession, either physical or constructive, of items which would enable that athlete to engage in a Prohibited Method. It is not necessary to establish the intent to use the Prohibited Method in addition to establishing actual or constructive possession.

6. “Other acceptable justification” is intended to cover situations in which emergency medical treatment is required, so that there is no opportunity to apply for a TUE. In the absence of a physical examination by a medical practitioner, the self-treatment of diarrhoea is not an “acceptable justification”. Likewise, in the absence of a FIS dispensation and if no protective ban has previously been issued, naturally high haemoglobin levels do not constitute an “acceptable justification”.

7. According to Swiss law, there are two types of conduct that may amount to “joint causation” or being an “accessory” to a tortious act: (1) active, physical assistance, or (2) psychological assistance. Such conduct is the first element of joint causation of damage. The second element under the Swiss Code requires that the assistance rendered by the accessory contributes to the damage caused.

8. In light of the plain language of the second part of Article 2.8 of the IOC Anti-Doping Regulations, an athlete will not only violate Article 2.8 if he or she is found to have assisted, encouraged, aided, abetted, covered up or engaged in “any other type of complicity” specifically in relation to the ADR violation(s) of another athlete (“horizontal complicity”); he or she will also violate Article 2.8 through “vertical complicity”, by which an athlete engages in an ADR violation that is facilitated by a coach or support staff, in circumstances where that coach or support staff also similarly facilitated the ADR violations of other athletes.

On 26 February 2002, shortly after the Salt Lake 2002 Olympic Winter Games, various items were found by a cleaner in a chalet in Midway, Utah, which was occupied by the Austrian cross-country and biathlon coach Walter Mayer along with his wife. It was subsequently determined that the chalet had been frequently visited by members of the Austrian cross-country and biathlon teams.

In light of the discovery of various items of equipment in Mayer’s chalet in Salt Lake City following the 2002 Salt Lake City Olympic Games the IOC Board sanctioned on 26 May 2002 the Austrian team coach, the team chiropractor, and two Austrian athletes.

4 years later during the Torino 2006 Olympic Winter Games, the Italian police discovered numerous materials in the accommodation of several Austrian athletes and support staff which evidenced the possession of prohibited methods and substances.

Pursuant to the recommendations made by the IOC Disciplinary Commission, the IOC Executive Board on 25 April 2007 disqualified and declared ineligible for all future Olympic Games the following athletes:

• Roland Diethart (cross-country);
• Johannes Eder (cross-country);
• Jürgen Pinter (cross-country);
• Martin Tauber (cross-country);
• Wolfgang Perner (biathlon); and
• Wolfgang Rottmann (biathlon).

Hereafter the Austrian athletes Eder, Tauber and Pinter appealed the IOC decision with the Court of Arbitration for Sport (CAS). They requested the Panel to set aside the Appealed IOC Decision.

The athletes each challenged the respective decision of the IOC Board on the basis that there was a lack of due process:

• the Board failed to give grounds for its decision;
• it did not provide the athletes with a right of audience;
• it delegated its hearing function to the IOC Disciplinary Commission (in violation of the ECHR); and
• its decision was based on insufficient evidence.

The Panel considers whether or not each of the athletes assisted, encouraged, aided, abetted or covered up the possession violations of his fellow Appellants in such a way as to contribute to causing his fellow athletes’ possession violations.

The IOC has proven to the Panel’s comfortable satisfaction that each athletes met these standards. The evidence demonstrate a broad pattern of cooperation and common activity, with the other athletes and with the coaches, in the possession of the Prohibited Method of blood doping.

The Panel holds that the anti-doping rule violations committed by the athletes in this case are extremely serious. The fact that the athletes engaged in these offences after the Salt Lake City affair exacerbates the seriousness of their anti-doping rule violations and illustrates that the athletes have failed to learn from the mistakes of members of the former Austrian cross-country ski team.

The Panel deems that in these circumstances, the athletes have shown a complete disregard for the principles of the Olympic Games and for the IOC ADR that protects the interests of all athletes at the Olympic Games.

Therefore the Court of Arbitration for Sport decides on 4 January 2008 that:

1.) The appeals filed by Johannes Eder, Martin Tauber and Jürgen Pinter against the decisions rendered on 25 April 2007 by the IOC Executive Board are dismissed.

2.) The decisions of the IOC Executive Board of 25 April 2007 declaring each of the Appellants to be ineligible permanently for all future Olympic Games in any capacity are affirmed.

3.) The counterclaim filed by Jürgen Pinter is denied.

(…)

CAS 2006/A/1102 Johannes Eder v. Ski Austria &
TAS 2006/A/1146 World Anti-Doping Agency (WADA) v. Johannes Eder & Ski Austria

CAS 2006/A/1102 Johannes Eder v/Ski Austria
TAS 2006/A/1146 Agence Mondiale Antidopage (AMA/WADA) c/Johannes Eder & Ski Austria

CAS 2006/A/1146 WADA vs Johannes Eder & Ski Austria

Related cases:

• CAS 2006_A_1102 Johannes Eder vs Ski Austria
  November 13, 2006
• CAS 2007_A_1286 Johannes Eder, Martin Tauber & Jürgen Pinter vs IOC
  January 4, 2008
• IOC 2007 IOC vs Johannes Eder
  April 24, 2007
  
  

• Cross-country skiing
• Doping (intravenous infusion of a saline solution)
• Validity of disciplinary sanctions under Austrian Law
• Proportionality of the sanctions
• Presumption of innocence
• Requirements for legitimate medical treatment
• No significant fault or negligence

1. In Austrian law, it is generally accepted that an association may impose disciplinary sanctions upon its members if they violate the rules and regulations of the association. The jurisdiction to impose such sanctions is based upon the freedom of associations to regulate their own affairs. The association is granted wide discretion in determining the violations which are subject to sanctions. By voluntarily acceding to the association, an athlete accepts the application of the disciplinary rules und its sanctions.

2. A standard suspension of two years is in compliance with the principle of proportionality, as well as a suspension of one year in case of no significant fault or negligence. Austrian law does not require a sanction lower than one year to be fixed in the case of no significant fault or negligence. The sanction is necessary and adequate to secure a worldwide standard in the application of anti-doping rules.

3. The presumption of innocence is a concept of criminal law. Disciplinary sanctions imposed by associations are subject to the civil law and must be clearly distinguished from criminal penalties. The shifting of the burden of proof to the athlete to demonstrate that he or she acted without (significant) fault does not conflict with the presumption of innocence. Athletes have a rigorous duty of care towards their competitors and the sports organization to keep their bodies free of prohibited substances. Anti-doping rule violations do not “just happen” but are, in most cases, the result of a breach of that duty of care. This justifies (i) to presume that the athlete acted with fault or negligence and (ii) to shift the burden of proof from the sanctioning body to the athlete to exonerate him- or herself. On the other hand, to impose on the sanctioning body to demonstrate that the athlete acted with fault or negligence would make the fight against doping extremely difficult or impossible.

4. The legitimacy of a medical treatment is to be judged according to six tests or criteria: 1) the medical treatment must be necessary to cure an illness or injury of the particular athlete; 2) under the given circumstances, there is no valid alternative treatment available, which would not fall under the definition of doping; 3) the medical treatment is not capable of enhancing the athlete’s performance; 4) the medical treatment is preceded by a medical diagnosis of the athlete; 5) the medical treatment is diligently applied by qualified medical personnel in an appropriate medical setting; and 6) adequate records of the medical treatment are kept and are available for inspection.

5. There is no significant fault where an athlete performs on himself an infusion of a product (e.g. saline solution) to cure an established disease, such treatment not being intended to enhance sporting performance but having been recommended by medical doctors in order to cure the disease and the remedy being suitable to it.

In February 2006 the Athlete Johannes Eder competed in the Austrian Men’s Team Sprint and the Men’s 4x10 km Relay during the Torino 2006 Olympic Winter Games.

On 18 February 2006 the Italian police searched the premises in which the Athlete resided of pursuant to a search and confiscation warrant. The Italian police found a number of items within the accommodation of the Austrian cross-country and biathlon teams, and their coaches and trainers, including numerous syringes (some used), blood bags (some used), butterfly valves for intravenous infusion, injection needles, bottles of saline and a device for measuring a person’s haemoglobin levels as well as a device for determining the blood group of a blood sample.

Specifically, in relation to the Athlete, the Italian police found under his bed one intravenous drip with needle containing a small quantity of transparent liquid. The Torino Prosecutor’s Office determined that the liquid within the infusion equipment seized from the Athlete was saline, which indicated that he had attempted to manipulate his “physiological parameters”.

The Austrian Olympic Committee (AOC) subsequently established an Inquiry Commission to investigate the conduct of the Austrian cross-country and biathlon teams at the Torino 2006 Olympic Winter Games. The AOC Inquiry Commission noted the that the Athlete had given himself an infusion.

In addition, the Austrian Ski Federation (ASF) investigated the conduct of the Athlete and they also concluded that he had self-injected saline during the Torino 2006 Olympic Winter Games. Hereafter Ski Austria’s Disciplinary Committee decided on 12 May 2006 to impose a 1 year period of ineligibility on the Athlete.

Hereafter in In June 2006 the Athlete and thereupon the World Anti-Doping Agency appealed the decision of Ski Austria with the Court of Arbitration for Sport (CAS). 

The Athlete asserted that the prohibition of intravenous infusions provided for in Rule M2.b of the Prohibited List 2006 is incompatible with:

• (i) the Austrian law of associations;
• (ii) the principle of proportionality of the Austrian law;
• (iii) the athlete’s personal right to choose the kind of therapy and to choose a most effective treatment of an illness;
• (iv) the athlete’s freedom of economic pursuit protected by Article 6 “Staatsgrundgesetz” (StGG);
• (v) the right to sufficient and efficient therapy pursuant to section 133 para. 2 of the “Allgemeines Sozialversicherungsgesetz” (ASVG); and
• (vi) the principle “nulla poena sine lege stricta” pursuant to Article 18 “Bundes-Verfassungsgesetz” (B-VG) and Article 7 ECHR.

The Panel addressed the Athlete's assertions and deems that Rule M2.b of the Prohibited List as well as Articles 10.5.1 and Article 10.5.2 in connection with Article 10.2 of the FIS Anti-Doping Rules are in compliance with Austrian law, and, therefore, applicable in the case at hand.

The Panel has no basis to put into question that the Athlete suffered from severe diarrhoea on the evening of 18 February 2006. Nevertheless the Panel concludes that the infusion of a saline solution administered by the Athlete on himself did not comply with the requirements for legitimate medical treatment and therefore must be considered as a doping offence.

Following assessment of the Athlete's conduct the Panel concludes that the Athlete acted without significant fault.

Therefore the  Court of Arbitration for Sport decides on 13 November 2006 that:

1.) The appeal filed by Johannes Eder on 2 June 2006 is dismissed.

2.) The appeal filed by WADA on 16 August 2006 is dismissed.

3.) The decision issued by the Austrian Ski Federation on 12 May 2006 is confirmed.

(…)

6.) All other claims are dismissed.

CAS 2005/A/918 K. v. FIS

CAS 2005/A/918 Kowalczyk v/ FIS

• Cross-country skiing
• Doping (glucocorticosteroid)
• Erroneous classification of Dexamethason
• Unilateral and procedurally incorrect attempt by the FIS
• Doping Panel to reconsider the doping offence
• Difference of the sanctioning regimes contained in Art. 10.2 and 10.3 FIS-Rules
• Burden of proof
• Measure of the athlete's negligence

1. If an ineligibility sanction is to be considered in an Article 10.3 FIS-Rules, “first violation” case, the penalty reduction possibility set forth in Article 10.5 FIS-Rules cannot supersede, exclude or otherwise diminish the right also granted to the athlete under Article 10.3 FIS-Rules to plead against its imposition.

2. The Article 10.5.1 FIS-Rules defence of “no Fault or Negligence” must always be available to the accused athlete, regardless of whether an Article 10.2 FIS-Rules or an Article 10.3 FIS-Rules sanction is applicable. With regard to the Article 10.5.2 FIS-Rules defence of “no significant Fault or Negligence”, however, it would contradict the ratio legis of the “no enhancement” defence under Article 10.3 FIS-Rules if the reduction limit under Article 10.5.2 FIS-Rules (“not less than one half of the minimum period”) were to apply in parallel to the minimum “warning and reprimand” penalty for the first violation involving a Specified Substance.

3. Upon the athlete’s prima facie showing that her use of the substance was for medical reasons and was not intended to enhance performance, the burden of proof shifted to the FIS to prove the contrary, namely that the athlete used this substance as a doping agent. In order to provide this rebuttal, the FIS Doping Panel should have revoked its decision and called for a new hearing of the merits of the dispute on the basis of Article 10.3 FIS-Rules.

4. The athlete’s negligence derives not from any ignorance of the prohibited nature of Dexamethason; her negligence lies rather in her lack of knowledge and application of the proper TUE procedures for the Specified Substance in question. The measure of this negligence does not justify a one year term of ineligibility.

In February 2005 the International Ski Federation (FIS) has reported an anti-doping rule violation against the Athlete after her sample tested positive for the prohibited substance Dexamethasone without a TUE.

The Athlete admitted the violation and explained that she and her doctor had already completed an Abbreviated Therapeutic Use Exemption (ATUE) form in December 2004 which she alleges to have submitted to the Polish Ski Association, but neglected to show to the testing authorities at the time of the doping control in January 2005. Following the notification of the violation the Athlete's application for a TUE was rejected in March 2005 by the Therapeutic Use Exemption Committee (TUEC).

Considering the Athlete's negligence the FIS Doping Panel decided on 13 June 2005 to impose a 2 year period of ineligibility on the Athlete.

Hereafter the Athlete appealed the FIS decision with the Court of Arbitration of Sport (CAS). Yet, at the same time the FIS Doping Panel had decided on 12 July 2005 to impose a new reduced sanction of 1 year instead of the imposed 2 years of ineligibility.

The CAS Panel holds that the one year period of ineligibility unilaterally imposed by the FIS Doping Panel has not only deprived the Athlete of her fundamental right to a fair hearing, but it also does not stand in fair and just proportion to the measure of her negligence. The Panel holds that a period of ineligibility ending 8 December 2005 provides the fair and proportionate measure of sanction.

Therefore on 8 December 2005 the Court of Arbitration for Sport decides:

1.) The decision rendered by FIS Doping Panel on 13 June 2005 and amended by its announcement of 13 July 2005 shall be replaced by a de novo decision on the merits of this case.

2.) The Appellant is disqualified from all individual results obtained in the U23 OPA Intercontinental Cup Competition held on 23 January 2005. The period of ineligibility to be imposed upon the Appellant shall commence on 23 January 2005 and shall end on 8 December 2005.

(…)

CAS 2005/A/847 Hans Knauss v. FIS

• Alpine skiing
• Doping (norandrosterone)
• Contaminated nutritional supplements
• Reduction of the sanction when the athlete both bears no significant fault or negligence and provides substantial assistance in establishing an anti-doping rule violation by another person
• Principle of proportionality

1. The risk of contamination and/or mislabelling in nutritional supplements cannot and shall not have remained ignored by an experienced athlete who has competed at the highest levels for many years taking into consideration the express warnings of numerous federations and anti-doping organisations that clearly and repeatedly over the past years have emphasized the risk of contamination and/or mislabelling in nutritional supplements. In such case, the standard of care required for “no fault or negligence”, namely utmost caution cannot be considered.

2. The requirements to be met by the qualifying element “no significant fault or negligence” must not be set excessively high. The higher the threshold is set, the less opportunity remains for differentiating meaningfully and fairly within the (rather wide) range of the period of ineligibility sanctioning the fault or negligence. But the low end of the threshold must also not be set too low; for otherwise the period of ineligibility of two years laid down for an anti-doping rule violation would form the exception rather than the general rule.

3. Linking the applicability of the rule providing for a reduced period of ineligibility in case of the athlete’s substantial assistance in establishing an anti-doping rule violation by another person to a formal criterion such as whether and to what extent a federation may or may not have jurisdiction over this other person or the facts disclosed by the athlete under the anti-doping rules of the federation is an arbitrary and unsuitable criterion for distinguishing conduct which is worthy of preferential treatment from other conduct which does not qualify for such treatment.

4. In the opinion of the Swiss Federal Tribunal, sports bodies can limit in their rules the circumstances to be taken into account when fixing sanctions and thereby also restrict the application of the doctrine of proportionality. However, the sport associations exceed their autonomy if these rules constitute an attack on personal rights, the nature and scope of which is extremely serious and totally disproportionate to the behaviour penalised.

In December 2004 the International Ski Federation (FIS) has reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone). Consequently the FIS Panel decided on 1 March 2005 to impose an 18 month period of ineligbility on the Athlete.

In first instance the FIS Panel accepted that the Athlete did not act intentionally although he clearly acted negligently with the use of his supplements.

Analysis of the Athletes supplements showed that they were contaminated. Thereupon the Athlete had filed a criminal complaint against the importer of the nutritional supplement. This action resulted in a large amount of (contaminated) nutritional supplements being seized and confiscated.

Hereafter the Athlete appealed the FIS decision with the Court of Arbitration for Sport (CAS).

Following assessment of the evidence in this case the Panel concludes that the Athlete did less rather than more than could be expected of him to minimise the risk associated with nutritional supplements about which he was warned, in particular, those originating from this company in question.

If one therefore weighs the efforts and precautions undertaken by the Athlete in their totality, they fall just under the threshold of “no significant fault or negligence”.

In the light of the particularities of the present case and the principle of proportionality, the Panel considers that the sanction of 18 months imposed by the FIS is fair and reasonable.

Therefore on 20 July 2005 The Court of Arbitration for Sport decides that:

1.) The appeal filed by Hans Knauss on 21 March 2003 is dismissed.

2.) The award is pronounced without costs, except for the Court Office fee of CHF 500.- already paid by the Athlete and which is retained by the CAS.

3.) Each party shall bear its own costs.

TAS 2002/O/373 COC & Scott v/IOC
CAS 2002/O/373 Canadian Olympic Committee (COC) & Beckie Scott / International Olympic Committee (IOC)

• Olympic Winter Games Cross-country skiing
• Standing to challenge a decision even if the claimant was not a party in the first instance
• Exclusion of the Olympic Games
• Interpretation of the Olympic Charter

1. In Swiss civil procedural law, the basic principle is that a claimant has standing to sue and the claim is admissible providing the person is invoking a substantive right of its own, i.e. a right deriving from contract, tort or another source. Gaining an Olympic medal is one of the ultimate goals in a star athlete’s career, which can bring with it many fruits, thereby giving her/him a very particular interest in challenging a decision if the modification of the decision could allow her/him to obtain a gold medal or a medal she/he did not get.

2. The interpretation of Rule 25 §2.2.1 of the Olympic Charter (“In case of exclusion from the Games…any medals or diplomas obtained shall be returned to the IOC”) is that the exclusion of an athlete under this provision must always be combined with the disqualification of the sanctioned athlete from all the competitions in which she/he participated during the games and by the forfeiture of all related medals.

On 15 February 2002, Olga Danilova, Larissa Lazutina and Beckie Scott competed in the women’s 5 km pursuit cross-country skiing competition at the 2002 Salt Lake City 2002 Olympic Winter Games. They placed first, second and third respectively, with Beckie Scott receiving the bronze medal.

Prior to the 2002 Salt Lake City Olympic Winter Games, in two post-competition doping controls on 8 and 20 December 2001, Larissa Lazutina tested positive for the banned substance Darbepoetin.

Larissa Lazutina nevertheless took part in the Salt Lake City 2002 Olympic Winter Games because the International Ski Federation (FIS) only imposed its sanction - a two-year suspension effective 8 December 2001- in June 2002 after the Games.

In February 2002 the International Olympic Committee (IOC) reported an anti-doping rule violation against the Russian Athlete Olaga Danilova after her sample tested positive for the prohibited substance Darbepoetin (dEPO). On 24 February 2002 the IOC Disciplinary Commission disqualified the athlete Olga Danilova and excluded her from the 2002 Olympic Winter Games.

In June 2002, due to Larissa Lazutina’s positive testing prior to the Olympic Games, the FIS suspended her from competition from 8 December 2001 to 7 December 2003.
Accordingly, on 29 June 2003, the IOC’s Executive Board announced its decision to annul all the results of Larissa Lazutina obtained at the 2002 Salt Lake City Olympic Winter Games.

The affect of the above decisions upon Beckie Scott is that she would receive the silver medal in the women’s 5 km free pursuit cross-country skiing competition at the 2002 Salt Lake City Olympic Winter Games. However, Beckie Scott considers she is entitled to receive the gold medal in such event because Olga Danilova should have had all her medals withdrawn, including the silver medal obtained in the women’s 5 km pursuit cross-country skiing competition.

Consequently, the COC and Beckie Scott decided to challenge the IOC’s decision of 24 February 2002 and filed their claim with CAS.

The CAS Panel considers that it necessarily follows from the IOC Executive Board’s decision to exclude Olga Danilova from the 2002 Salt Lake City Olympic Games that she be disqualified from all the competitions she participated in and that all her corresponding medals be forfeited.

Because Beckie Scott is waiting to receive the medal she is entitled to, the Panel considers the IOC must render its new decision as soon as possible. However, in order to leave the IOC sufficient time to prepare its new decision and since the scheduled date for the next meeting of its Executive Board is the end of February 2004, the Panel considers 15 March 2004 to be an appropriate deadline within which the new decision must be rendered.

Therefore the Court of Arbitration for Sport decides unanimously on 18 December 2003:

1.) The request for relief filed by Beckie Scott on 30 June 2003 is admitted.

2.) The request for relief filed by the Canadian Olympic Committee on 30 June 2003 is rejected.

3.) The decision of 24 February 2002 issued by the Executive Board of the International Olympic Committee is annulled.

4.) The matter in dispute is remitted to the Executive Board of the International Olympic Committee with the order for it to render a new decision, by 15 March 2004, whereby in effect the IOC:

- i. Confirms the exclusion of Olga Danilova from the XIX Olympic Winter Games of Salt Lake City 2002.

- ii. Disqualifies Olga Danilova from all the cross-country skiing competitions in which she participated at the XIX Olympic Winter Games of Salt Lake City 2002.

- iii. Annuls all the results obtained by Olga Danilova at the XIX Olympic Winter Games of Salt Lake City 2002.

- iv. Gives the necessary orders and takes the measures required to withdraw all the medals obtained by Olga Danilova at the XIX Olympic Winter Games of Salt Lake City 2002.

- v. Gives the necessary orders and takes the measures required to amend accordingly the rankings in the women’s 5 km free pursuit cross-country skiing competition at the 2002 Salt Lake City Olympic Winter Games, in which Olga Danilova participated; ensuring in particular that Beckie Scott is ranked first and awarded the Olympic gold medal in the foregoing competition.

5.) (...).

CAS 2002/A/389, 390, 391, 392 & 393 A., B., C., D. & E. / International Olympic Committee (IOC)

• CAS 2002/A/389 Walter Mayers vs IOC
• CAS 2002/A/390 Marc Mayer vs IOC
• CAS 2002/A/391 Achim Walcher vs IOC
• CAS 2002/A/392 Peter Baumgart vs IOC
• CAS 2002/A/393 Volker Müller vs IOC

• Cross country skiing
• Blood doping
• Use of a prohibited method
• No legitimate medical treatment

1. The definition of Blood Doping pursuant to the Olympic Movement Antidoping Code (OMAC) includes the administration of the athlete’s own blood. The definition of blood doping is met irrespective of the amount of blood withdrawn and re-injected and whether or not it is potentially harmful to athletes’ health and/or capable of enhancing their performance.

2. The conditions under which a certain medical treatment, which would otherwise fall under the definition of doping, may be justified are truly exceptional and must therefore be demonstrated by the athlete or the person performing such treatment. To determine whether a certain medical treatment is legitimate under the OMAC, the CAS applies the following test:
a) The medical treatment must be necessary to cure an illness or injury of the particular athlete;
b) Under the given circumstances, there is no valid alternative treatment available which would not fall under the definition of doping;
c) The medical treatment is not capable of enhancing the athlete’s performance;
d) The medical treatment is preceded by a medical diagnosis of the athlete;
e) The medical treatment is diligently applied by qualified medical personnel in an appropriate medical setting;
f) Adequate records of the medical treatment are kept and are available for inspection.

3. In the present case, the UV Blood Transfusions were administered in a private place by a coach with no medical support and without supervision of, or disclosure to, the team doctor, the IOC Medical Commission or the team management. The UV Blood Transfusions were not even documented by proper records. Consequently, the test for legitimate medical treatment was not met and the blood transfusion must be considered as blood doping.

On 26 February 2002, shortly after the Salt Lake 2002 Olympic Winter Games, various items were found by a cleaner in a chalet in Midway, Utah, which was occupied by the Austrian cross-country and biathlon coach along with his wife. It was subsequently determined that the chalet had been frequently visited by members of the Austrian cross-country and biathlon teams.

The material discovered by the cleaner included vials and ampoules, various phosphate and sodium salts, vitamins and amino acids and transfusion equipment, including 3 blood bags (with blood residue), a blood transfusion device, multiple infusion sets (with blood in the IV lines), butterfly needles, syringes and used needles.

After an investigation, the IOC sanctioned on 26 May 2002 the Austrian team coach, the team chiropractor, and two Austrian athletes. Hereafter in June 2002 the IOC decision was appealed with the Court of Arbitration for Sport (CAS).

The main issues to be resolved by the Panel are:

(a) Was the IOC EB competent to issue a sanction against the Appellants?

(b) If yes: Did the IOC EB violate the minimum requirements regarding due process by not explicitly referring to the witness statement of Dr. Frick?

(c) Does the UV-Blood Transfusion as admittedly performed by Mr. Walter Mayer qualify as Prohibited Method according to the OMAC?

(d) If yes: Does the UV-Blood Transfusion as performed by Mr. Walter Mayer have to be considered as legitimate medical treatment?

(e) If UV-Blood Transfusions as performed by Mr. Walter Mayer are considered as a prohibited method: did Dr. Peter Baumgartl or Mr. Volker Müller facilitate the use of doping?

(f) Do the treatments performed by Mr. Volker Müller at the 2002 Winter Games have to be considered infractions on regulations applicable during these Games?

The Court of Arbitration for Sport decides on 20 March 2003:

1.) The Appeals filed by Walter Mayer, Marc Mayer, Achim Walcher and Dr. Peter Baumgartl are dismissed.

2.) The Appeal filed by Volker Müller is partially upheld.

3.) The CAS renders the following decision:

The ineligibility of Volker Müller to participate in all Olympic Games up to and including the Olympic Games held in 2010 is replaced by a strong warning.

4.) The Court Office fee of CHF 500.-- per Appellant remains with the Court Office. The Award is rendered without further costs.

5.) The Appellants shall pay to the Respondent as contribution towards its expenses the following amounts:

• Walter Mayer CHF 3.000.--,
• Marc Mayer, Achim Walcher and Dr. Peter Baumgartl CHF 2.000.-- each, and
• Volker Müller CHF 1.000.--.

CAS 2002/A/376 Baxter / International Olympic Committee (IOC)

• Alpine skiing / Olympic Games
• Doping (methamphetamine)
• Strict liability
• Irrelevance of any fault or of any enhancing effect
• Disqualification and exclusion from the Olympic Games

1. Consistent CAS case law has held that athletes are strictly responsible for substances they place in their body and that for purposes of disqualification (as opposed to suspension), neither intent nor negligence needs to be proven by the sanctioning body. Article 2.2 of Chapter II of the Olympic Movement Anti-Doping Code (OMAC) states that doping is the “presence in the body of a prohibited substance”, whether or not intentional or negligent, can affect the results of the event so that the presence of the substance is sufficient to find a doping violation.

2. Appendix A (I) to the OMAC lists among the classes of prohibited substances “amphetamines”. Thus, any form of amphetamines is covered by this listing, and there can be no doubt that both isomers of methamphetamine, including levmetamfetamine, are amphetamines within the meaning of that term. The IOC has not established any threshold level for methamphetamine. As a result, any level of methamphetamine constitutes a doping violation.

3. Disqualification is the minimum sanction that automatically follows a doping offence, in accordance with Article 3.3 of the OMAC. It is reasonable for the IOC to have determined that it may not always be possible to prove or disprove fault or performance-enhancing effect, but that in order to ensure the integrity of results the mere presence of a prohibited substance requires disqualification and invalidation of the result obtained.

Mr. Alain Baxter competed for the British team in the men's alpine skiing slalom event on 23 February 2002 at the Salt Lake City 2002 Olympic Winter Gamesy. He finished third and was awarded a bronze medal in the event.

On 21 March 2002, the IOC Executive Board decided for disqualifying Mr. Baxter and removing his bronze medal and diploma after his A and B samples tested positive for the prohibited substance Levmetamfetamine and Methamphetamine.

As a consequence of the positive urine test, the Fédération Internationale de Ski (“FIS”) suspended the Athlete from competition for three months. Mr. Baxter did not challenge the suspension or the length of the suspension.

Yet, in a separate CAS proceeding the Athlete appealed the manner of calculating the three-month period. Another CAS panel upheld the appeal and re-calculated the effective dates of the three-month suspension.

The issue of any suspension is therefore not before this Panel, which is only asked to determine the appropriateness of the disqualification of Mr. Baxter‟s Olympic results.

The Panel is not without sympathy for the Athlete, who appears to be a sincere and honest man who did not intend to obtain a competitive advantage in the race. It is unfortunate that, for whatever reason, he did not see the term levmetamfetamine on the package he bought or did not understand its import, and that he did not consult with his team doctor before taking the medication.

Nevertheless, because Mr. Baxter took the medication, at the time of his slalom race his body contained a prohibited substance. The consequence for this doping violation must be a disqualification and the loss of his bronze medal.

On 15 October 2002 the Court of Arbitration for Sport:

1.) Denies the appeal filed by Mr. Baxter and upholds the ruling of the IOC Executive Board disqualifying Alain Baxter from the men‟s alpine skiing slalom event at the Salt Lake City Winter Olympics, withdrawing his Bronze medal and diploma, and excluding him from the XIX Olympic Winter Games, Salt Lake City 2002;

2.) (…).

CAS 2010/A/2041 Yuliya Chepalova v. Fédération Internationale de Ski (FIS)

CAS 2010/A/2041 Y. v. Fédération Internationale de Ski (FIS)

• Cross country skiing
• Doping (rEPO)
• Validity of the method to find the presence of rEPO in a urine sample
• Validity of the adverse analytical finding
• Extent of the right to attend the B sample “opening and analysis”
• Sanction

1. Considering that the IEF-DB Method which is a “direct detection method” codified by TD2007EPO and TD2009EPO (Technical Document issued by WADA) has been applied for years to detect the presence of rEPO in the sample provided by the athlete and has also been repeatedly validated by the CAS jurisprudence, the application of the new identification criteria under TD2009EPO to address, as “Other Epoetins”, the new types of EPOs does not require a new validation. The application of the SDS-PAGE Method cannot be considered to be a mandatory supplement to the IEF-DB Method under TD2009EPO in every case. If a doubt exists as to the origin of the EPO found in a sample not showing a typical endogenous profile, the SDS-PAGE Method can be applied (as additional evidence) to discriminate between forms of EPO on the basis of a different, compared to the IEF-DB Method, principle: not the acidity of the molecules, but their mass.

2. As long as (i) the results shown by the IEF-DB Method, indicating that the identification criteria for “Other Epoetins” are clearly met, are reliable and are sufficient to support the Adverse Analytical Finding, (ii) the results of the SDS-PAGE Method cannot be deemed to exclude the positive finding based on the IEF-DB Method and (iii) there is no evidence invalidating the Adverse Analytical Finding for any procedural reasons, then the detection of rEPO in the athlete's urine is established and the athlete is to be found in violation of the anti-doping rule constituted by Article 2.1 of the FIS ADR.

3. The opportunity for the athlete and/or his/her representative to attend the B sample “opening and analysis” is indeed a basic right in doping-control proceedings, since it reflects the need that an athlete is heard before an adverse analytical finding is finally reported and provides the possibility for the athlete to verify that the procedures intended to confirm the initial adverse analytical finding are properly conducted. However this right does not necessarily extend to the right to attend the performance of those analyses which are not required to confirm the initial adverse analytical finding like the attendance of the performance of the analysis performed on the “extended gel”.

4. An athlete who has violated an anti-doping rule (presence of a prohibited substance in his/her urine sample – Article 2.1 of the FIS ADR) is to be sanctioned with two years’ ineligibility pursuant to Article 10.2 of the FIS ADR.

In August 2009 the International Ski Federation (FIS) reported an anti-doping rule violation against the Russian skier Yuliya Chepalova after her A and B samples tested positive for the prohibited substance Recombinan Erythropoietin (RhEPO).

Consequently the FIS Doping Panel decided on 22 December 2009 to impose a 2 year period of ineligibility on the Athlete. Hereafter in January 2010 the Athlete appealed the FIS Decision with the Court of Arbitration for Sport (CAS).

The Panel assessed and addressed the evidence and the many issues raised by the Athlete and determines that:

• The results shown by the IEF-DB Method, indicating that the identification criteria for “Other Epoetins” are clearly met, are reliable and are sufficient to support the Adverse Analytical Finding.
• The results of the SDS-PAGE Method cannot be deemed to exclude the positive finding based on the IEF-DB Method.
• The Adverse Analytical Finding is not invalid for any procedural reasons.
• Given the detection of RhEPO in her urine, the Athlete. is to be found in violation of the anti-doping rule constituted by Article 2.1 of the FIS ADR.

Therefore the Court of Arbitration for Sport decides on 1 October 2010 that:

1.) The appeal filed by the Athlete against the decision issued on 22 December 2009 by the Doping Panel of the Fédération Internationale de Ski is dismissed.

(…)

4.) All other prayers for relief are dismissed.

CAS ad hoc Division (OG Turin) 06/004 Deutscher Skiverband & Evi Sachenbacher-Stehle v. International Ski Federation (FIS)

Related cases:

• IBU 2014 IBU vs Evi Sachenbacher-Stehle
  July 14, 2014
• IOC 2014 IOC vs Evi Sachenbacher-Stehle
  February 21, 2014
• CAS 2014_A_3685 Evi Sachenbacher-Stehle vs IBU
  November 14, 2014
  
  

• Cross-country skiing
• Haemoglobin (Hb) value exceeding the threshold under the FIS Rules
• Alleged naturally high elevated level of Hb
• Application for a dispensation from the FIS Hb Rule

Since 2003 requests have been made each year to issue a dispensation for a naturally elevated high level of Haemoglobin (Hb) for this Athlete. All requests have been unsuccessful in persuading the FIS that this Athlete has a naturally high elevated level of Hb. FIS does agree that this Athlete does have a modestly elevated level of Hb but it is not sufficient to justify issuing a dispensation pursuant to Rule FIS B.4.8. Far be it for the CAS Panel to substitute its views to those of the experts who have declined to grant the dispensation to this Athlete for a naturally high elevated level of Hb over the past 3 years. The Panel is being asked to make a medical expert’s judgement through the guise of cancelling a Notification of Start Prohibition. It is not for the Panel to perform an evaluation similar to that contemplated by the FIS B.4.8, which would apply for the duration of theOlympic Games.

Ms Evi Sachenbacher-Stehle is a German Athlete selected to compete in the Women's Cross Country Skiing Events at the Turin 2006 Olympic Winter Games.

Following a blood screening/testing on 9 February 2006 that showed a level of haemoglobin above the maximum tolerated values, Ms Sachenbacher-Stehle was obliged by the FIS not to start any competitions for five consecutive days. As a result, the athlete would be forced to miss her first Olympic Games event on 12 February 2006.

Hereafter the German Ski Federation and the German cross-country skier Ms Evi Sachenbacher-Stehle filed an application in order to cancel the “Notification of Start Prohibition” issued by the International Ski Federation (FIS).

The athlete further asked the Panel to declare that the levels of haemoglobin were naturally elevated and had no connection with any haematological disease. The Panel refused to make a medical expert’s judgment and dismissed the application; moreover, it was convinced that the athlete did not have a naturally high level of haemoglobin.

On the basis of the facts and legal aspects, the ad hoc Division of the Court of Arbitration for Sport renders the following decision:

1.) The application filed by Ms Evi Sachenbacher-Stehle and Deutscher Skiverband against the International Ski Federation is denied.

2.) (…).