• CAS 2009/A/1931 E. & A. v. International Biathlon Union (IBU)
• CAS 2009/A/1931 Ekaterina Iourieva & Albina Akhatova vs IBU
• CAS 2009/A/1931 Ekaterina Iourieva & Albina Akhatova v. International Biathlon
  Union
  
  

Related cases:

• IBU 2009 IBU vs Albina Akhatova
  August 11, 2009
• IBU 2009 IBU vs Ekaterina Iourieva
  August 11, 2009
• IBU 2013 IBU vs Ekaterina Iourieva
  July 14, 2014
• IBU 2014 IBU vs Ekaterina Iourieva
  June 30, 2015
• Swiss Federal Court 4A_620_2009 Ekaterina Iourieva & Albina Akhatova vs IBU
  May 7, 2010

• Biathlon
• Doping (recombinant EPO)
• Definition of the International Standards for Laboratories (ISL)
• Use of the most recent state of the art technology and knowledge
• Duty of the accredited laboratories in applying the standards
• No more requirement that a different analyst perform the analytical procedures
• Principle of lex mitior

1. The ISL is a mandatory level 2 International Standard developed as part of the World Anti-Doping Code (WADAC). The ISL includes requirements for WADA accreditation of doping laboratories, operating standards for laboratory performance and description of the accreditation process. Its main purpose is to ensure laboratory production of valid test results and evidentiary data. It is also intended to ensure that the accredited laboratories achieve uniform and harmonized results and reporting thereon. The ISL, including all Annexes and Technical Documents, is mandatory for all Signatories to the WADAC. The ISL is therefore not directly applicable to athletes but rather to the signatories to the WADAC.

2. The laboratories must always use the most recent state of the art technology and knowledge to identify prohibited substances and methods. The ISL is intended also to ensure that the accredited laboratories achieve uniform and harmonized results and reporting thereon. Therefore, the ISL ought to indicate that the use of the most recent state of the art technology and knowledge will be used in testing, particularly in a transitional period between use of an existing and effective TD and a replacing one.

3. It is the duty of the accredited WADA laboratories to be strict in meeting the requirements of the ISL and applying the standards.

4. The 2009 ISL removed the requirement that a different analyst perform the analytical procedures. The only requirement of article 5.2.4.3.2.2 in the 2009 ISL is that the “B” sample confirmation shall be performed in the same laboratory as the “A” sample confirmation.

5. The principle of lex mitior is generally understood to mean that, if the law relevant to the offence of the accused has been amended, the less severe law should be applied. Therefore, the principle of lex mitior relates more specifically to the applicable sanction and is not applicable to the technical rules underlying the scientific basis of the evidence.

In December 2008 the International Biathlon Union (IBU) reported an anti-doping rule violation against the two Russian Athletes Ekaterina Iourieva and Albina Akhatova after their A and B samples tested positive for the prohibited substance recombinant human erythropoetin (rhEPO).

After notifitcation a provisional suspension was ordered and the Athletes were heard for the IBU Doping Hearing Panel. On 11 August 2009 the ISU Doping Hearing Panel decided to impose a 2 year period of ineligibility on the Athletes Ekaterina Iourieva and Albina Akhatova, starting on the date of the sample collection.

Hereafter in August 2009 the Athletes appealed the IBU decision of 11 August 2009 with the Court of Arbitration for Sport (CAS). The Athletes requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.

They argued that the laboratory failed to analyse the samples and to report the test results in conformity with the 2008 ISL and related Technical Documents (TD).

Following assessment of the evidence the Panel establishes  no departures from the applicable ISL and its accompanying technical documents. Without diminishing the importance of improvement in the future the aspect of meeting the “Documentation and Reporting” aspects of the ISL and the description of the analytical finding, the Adverse Analytical Finding (AAF) of the Lab in this case can be fully relied upon by the sanctioning and reviewing bodies.

Therefore the Court of Arbitration for Sport decides on 12 November 2009 that:

1.) The Appeal of Ms Ekaterina Iourieva and Ms Albina Akatova is dismissed.

2.) The award is pronounced without costs, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) paid by the Appellants, which is retained by the CAS.

3.) Ms Ekaterina Iourieva and Ms Albina Akatova shall each pay the IBU a contribution towards the legal fees of the IBU in the amount of CHF 2,500 (two thousand five hundred Swiss Francs), within 30 (thirty) days of notification of this award.

CAS 2009/A/1892 World Anti-Doping Agency (WADA) v. Comitato Olimpico Nazionale Italiano (CONI), Ronaldo Sylvester Slay & Guillermo Jose Diaz Gonzalez

• Basketball
• Doping (failure or refusal to submit to doping control
• Insufficient evidence establishing a liability
  
  

“Refusal” or “failure” to submit to doping control or an “otherwise evading a doping control” has not been established according to the applicable comfortable satisfaction standard of proof when the evidence submitted is not sufficient to establish that the athletes were told in an unequivocal and understandable manner not to leave the doping control station so as to enable them to understand that they would be in breach of their duties if they did so.

In November 2008 the Italian National Olympic Committee (CONI) has reported an anti-doping rule violation against the basketball players Ronaldo Slay and Guillermo Diaz Gonzalez for their refusal or failure to submit to sample collection.

Consequently the CONI National Anti-Doping Tribunal decided on 8 May 2009 to impose a 1 month period of ineligibility on the Athletes.

Hereafter WADA appealed the CONI Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athletes.

Following assessment of the evidence in this case the Panel deems that WADA has not succeeded in establishing when and in what form the Athletes were made aware that they were told let alone directed not to leave the anti-doping station in a manner which enabled them to understand that they would be in breach of their duties if they did so.

Furthermore the Panel is not satisfied that even if it were established that the Athletes left the doping control station despite an unequivocal instruction not to do so, the behaviour of the Athletes would constitute a “refusal” or a “failure” or an “otherwise evading” under Article 2.3 of the CONI Anti-Doping Rules.

Therefore the Court of Arbitration for Sport decides on 7 January 2010:

1.) The appeal filed by the World Anti-Doping Agency on 24 June 2009 is dismissed.

2.) The decision issued by the CONI National Anti-Doping Tribunal on 8 May 2009 is upheld.

3.) (…).

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

CAS 2010/A/2230 International Wheelchair Basketball Federation v. UK Anti-Doping & Simon Gibbs

Related case:

UKAD 2010 UKAD vs Simon Gibbs
June 4, 2010

In March 2010 the United Kingdom Anti-Doping (UKAD) has reported an anti-doping rule violation against the wheelchair basketball player Simon Gibbs after his sample tested positive for the prohibited substance Mephedrone. Thereupon the National Anti-Doping Appeal Panel decided on 23 August 2011 to impose a 2 year period of ineligibility on the Parathlete.

Hereafter in September 2011 the International Wheelchair Basketball Federation (IWBF) appealed the Decision with the Court of Arbitration for Sport (CAS). the IWBF requested the Panel to set aside the Appealed Decision and to impose a proportionate sanction on the Parathlete.

The IWBF argued that the provisions of Article 10.4 of the UK Anti-Doping Rules prevented the Parathlete from adducing evidence as to his lack of culpability simply because he could not establish how the Mephedrone was present in his body and that, perversely, he would have been better off to have admitted – falsely - that he had deliberately taken Mephedrone.

The Parathlete accepted the test result and denied the intentional use of the substance. He asserted that he had demonstrated with corroborating evidence how the substance had entered his system as a result of spiking.

Following assessment of the evidence and the parties' assertions the Sole Arbitrator determines:

• The Parathlete has not established how the substance Mephedron had entered his system.
• This does not mean that he – or any of the adjudicative bodies – have attached stigma of ‘doper’ to the Parathlete.
• There are no grounds to reduce or eliminate the sanctions consequential upon the indisputable presence of Mephedrone.
• It was not for UKAD to provide intent to dope.

Therefore the Court of Arbitration for Sport decides on 22 February 2011 that:

1.) The appeal filed by the International Wheelchair Basketball Federation on 13th September 2011 against the decision of the UK National Anti-Doping Appeal Panel dated 23rd August 2010 is dismissed.

2.) The costs of arbitration, to be calculated and notified to the parties by the CAS Court Office shall be borne by the International Wheelchair Basketball Federation.

3.) (...)

TAS 2006/A/1038 Joseph N’Sima / FIBA & AMA

CAS 2006/A/1038 Joseph N'Sima vs FIBA & WADA

Related case:

FIBA 2006 Joseph N’Sima & WADA vs FIBA – Appeal
January 16, 2006

In October 2004 Antidoping Norge (Anti-Doping Norway) has reported an anti-doping rule violation against the Athlete Joseph N’Sima after his A and B samples tested positive for the prohibited substance Ephedrine.

The Athlete had already left Norway and joined a basketball club in France. Therefore in January the case was transferred from Antidoping Norge to the International Basketball Federation (FIBA).

After notification by FIBA the Athlete was heard for the FIBA Commission. The FIBA Commission concluded that the Athlete has committed an anti-doping rule violation due to he acted negligently using supplements, which contained the prohibited substance.

Without intention to enhance sport performance and due to the substantial delays in this case, the FIBA Commission decided on 13 October 2005 to impose a 12 week period of ineligibility on the Athlete starting on the date of the decision until 31 December 2005.

Hereafter the Athlete and WADA appealed the FIBA Commission Decision of 13 October 2005 with the FIBA Appeals Commission.

The Athlete argued that there were irregularities in the sample collection. However the Athlete has no conclusive explanation for the positive doping test, due to the various medication and supplements he used.
WADA requested to set aside the FIBA Commission Decision of 13 October 2005 and to impose a 2 year period of ineligibility on the Athlete. WADA argued that the Athlete has not established that the use of the substance was not intentional.

The Sole Arbitrator considered in this case:

• the circumstances of the offence;
• the degree of guilt; the Athlete’s financial and personal circumstances;
• the long period between the sample collection and the punishment for the anti-doping rule violation;
• the first violation by the Athlete; and
• his cooperation during the proceedings.

Therefore the Sole Arbitrator of the FIBA Appeals Commission decides:

1.) The appeal by the Athlete is dismissed.

2.) The WADA appeal is upheld and the FIBA Commission Decision of 13 October 2005 is set aside.

3.) A 2 year period of ineligibility is imposed on the Athlete, starting on 13th October 2005.

4.) In application of Art. 6.8.3.1 of the Internal Regulations the FIBA Appeals Commission Panel orders that the execution of the sanction in excess of one year be suspended.

5.) The FIBA and the Athlete shall bear the costs of the proceedings.

In Februay 2006 the Athlete appealed the decision of the 16 January 2006 with the Court of Arbitration for Sport (CAS).
The Athlete argued that there had been irregularities with the doping control procedure and that he acted without fault or negligence.

The CAS Panel finds that the Athlete failed to demonstrat that there were irregularities with the doping control procedure. He also failed to establish how the prohibited substance had entered his system.

Therefore the Court of Arbitration for Sport Panel decides on 4 December 2006 to uphold the decision of the FIBA Appeals Commission of 16 January 2006 to impose a 2 year period of ineligibility on the Athlete with 1 year suspenended.

CAS 2002/A/360 Jovanovic v/USADA

In January 2002 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the Athlete Pavle Jovanovic after his A and B samples tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

Consequently on 26 January 2002 the AAA Panel decided to impose a 9 month period of ineligibility on the Athlete.

Hereafter the Athlete appealed AAA Panel decision with the Court of Arbitration for Sport (CAS). In his defence the Athlete filed arguments about the strict liability, the chain of custody, the testing, supplement contaimination and the sanction.

The Panel does not accept the Appellant's evidence as to the care he took about the taking of supplements. He did not approach the United States Bobsleigh Federation, or any other body, for guidance. He did not take medical advice.

He relied only upon his own research, which, as we have found, was considerably less thorough than he would have had us believe. Further he ignored wamings about the dangers of contamination given by a number of bodies, including the IOC and USADA. Finally, he expressed no contrition, and accepted no blame, but sought to blame the IOC, WADA and USADA but not himself for the predicament in which he now finds himself.

For these reasons, even if it had had the discretion to reduce the mandatory minimum sentence of two-year suspension, the Panel would not find "specific, exceptional circumstances" for doing so.

Therefore The Court of Arbitration for Sport decides on 7 February 2002:

1.) The appeal filed by Mr. Pavle Jovanovic on 28 January 2002 is dismissed.

2.) The decision of the AAA Panel of 26 January 2002 is varied as follows:

The Appellant is ineligible for competition for a period of two years from 29 December 2001.

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

4.) Each party shall bear its own costs.

CAS OG 06/001 World Anti-Doping agency (WADA) vs United States Anti-Doping Agency (USADA) & United States Bobsled & Skeleton Federation (USBSF) & Zachery Lund

• Skeleton
• Doping (Finasteride)
• No Significant Fault or Negligence
• Period of ineligibility resulting in the exclusion from the Olympic Games

1. The use of Finasteride which has been included on the WADA Prohibited list since 1 January 2005 as a masking agent constitutes a doping violation in breach of the USADA Protocol and of the FIBT Doping Control Regulations.

2. Under the FIBT Doping Control Regulations, in order to establish “No Fault or Negligence” an athlete has to show that he did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he had used the Prohibited Substance. It cannot seriously be argued that an athlete who realized (and has been told by his national federation) that he had to check the Prohibited List each year and who failed to look at the list at all for over a year had exercised the utmost caution. It is a failure not to continue to monitor the Prohibited List, in accordance with his duty as an athlete.

3. In order to establish “No Significant Fault or Negligence”, an athlete has to show that his fault or negligence, when viewed in the totality of the circumstances and taking into account the criteria for “No Fault or Negligence” was not significant in relation to the anti-doping rule violation. Once the test has been satisfied, the period of ineligibility can be reduced. An athlete has satisfied the test where he has shown to be an honest athlete, open and frank with his failure, who for a number of years regularly checked the Prohibited List but failed to do so one year continuing however to include on the Doping Control Form the information that he was taking medication. The fact that the information was not picked up by any anti-doping organisation until the positive test is relevant.

In January 2006 the United States Anti-Doping Agency (USADA) reported an anti-doping rule violation against the Athlete Zach Lund after his sample tested positive for the prohibited substance Finasteride.

Consequently on 22 January 2006 the Athlete admitted the violation and accepted the sanction of a warning and disqualification of his competition results.

Hereafter in February 2006 the World Anti-Doping Agency (WADA) appealed the USADA Decision with the CAS ad hoc Division. WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

USADA contended that the Athlete was not a cheat and that the Athlete was mislead by the contents of the FIBT website regarding the substance Finasteride. Further it asserted that the Athlete's doping test record and medical history demonstrated that the Athlete used the product for medical purposed.

By contrast the Panel established the athlete who realized (and has been told by his national federation) that he had to check the Prohibited List each year and who failed to look at the list at all for over a year had exercised the utmost caution, albeit that for several years previously he had scrutinised the list with care. It is his failure to continue to monitor the Prohibited List, in accordance with his duty as an athlete, that has placed the Athlete in his present predicament.

In these circumstances, the Panel concludes that the Athlete, on his own admission, an admission which was contained on the Doping Control Form, committed an anti-doping violation and cannot escape a period of ineligibility.

Therefore the ad hoc Division of the Court of Arbitration for Sport renders the following decision:

1.) The Appeal filed by the World Anti-Doping Agency on 2 February 2006 is allowed in part.

2.) The USADA Decision made on 22 January 2006 is overruled.

3.) Mr Lund’s period of ineligibility is for one year commencing on 10 November 2005 and concluding on 9 November 2006.

4.) WADA’s request for the disqualification of Mr Lund’s results after 10 November 2005 is rejected.

CAS 2006/A/1175 Edita Daniute v/ International DanceSport Federation

CAS 2006/A/1175 D. v/ International DanceSport Federation

Related case:

IDSF 2006 IDSF vs Edita Daniute
November 17, 2006

• Dance Sport
• Doping
• Specified substance (Sibutramine)
• Power of an association to secure the observance of its rules by its associates
• Lack of intention of the athlete to enhance his/her sport performances
• Sanction

1. Swiss law allows an association to sanction the associates for their breach of the association rules, so as to secure the observance of those rules. Disciplinary commissions are actually intended to serve this purpose. In this framework, any reproach for the way specific disciplinary proceedings are organized should not be limited to an overall criticism about an alleged lack of independence or of a conflict of interest between the association and the associates, or the functional or organizational position of the disciplinary committee, but should concern identified violations of the internal rules of the association, or mandatory rules of the applicable law, governing the composition and the activity of the chamber in charge of hearing the given case.

2. As Sibutramine is mentioned by the IADC among the Specified Substances, no further evaluation is requested in order to establish whether Sibutramine is particularly susceptible to unintentional doping. Where sufficient elements have been adduced by the athlete, which are based on the characteristics of the sport concerned, as well as on scientific indications that have not been specifically contradicted, to confirm that Sibutramine could not enhance his/her sport performance, and therefore justify the conclusion of the lack of her intention to achieve that effect. Besides, the general purpose to achieve a “slimming” benefit, by use of a product not mentioning on the label the presence of a Specified Substance, cannot be equated to the specific intention to enhance the sport performance within the meaning of Article 5(V)(2) of the IADC.

3. The fact that a major sporting event is to take place within the period of ineligibility of an athlete found responsible of an anti-doping rule violation does not affect the measure of the sanction.

In September 2006 the International DanceSport Federation (IDSF) reported an anti-doping rule violation against the Athlete after her A and B samples tested positive for the prohibited substance Sibutramine.

The Athlete denied the intentional use of the substance and explained that she had used a herbal slimming product whereas the prohibited substance wasn't mentioned on the label.

Consequently on 17 November 2006 the IDSF Disciplinary Council decided to impose a 3 month period of ineligibility on the Athlete. Hereafter in November 2006 the Athlete appealed the decision with the Court of Arbitration of Sport (CAS).

Following assessment of the case the Panel finds that the imposed sanction was proportional. The Panel deems that the Appeal must be modified regarding the calculation of the period covered by the ineligibility, whose duration is confirmed. As a result the interim measure adopted by the Deputy President of the CAS Arbitration Division in its decision delivered on 23 November 2006 is revoked.

Therefore on 26 June 2007 the Court of Arbitration for Sport decides:

1.) The appeal filed by Edita Daniute against the decision issued on 17 November 2006 by the Disciplinary Council of the International DanceSport Federation is partially upheld.

2.) The Athlete is declared ineligible for competition for 3 (three) months, from 14 September 2006 to 14 December 2006.

3. The counterclaim filed by the International DanceSport Federation is dismissed. (…)

The Disciplinary Committee involved acquitted this case. The Dutch Royal Strength Sport Fitness Federation (KNKF) had filed against the person because of the discovery of prohibited substances 3'-OH-stanozolol, 4β-OH-stanozolol, 16β-OH-stanozolol, norandrosterone and testosterone after an out of competition doping test. The Disciplinary Committee had her acquittal based on the consideration that the doping membership had been terminated and person concerned had stopped his sport. The KNKF appealed against the decision of the Disciplinary Committee. Person concerned reacted and submitted a defence.
The KNKF argued that person actually is a member of the KNKF and that he as a former in competition participant actually was subjected to the statutes and regulations, including the Doping Regulations. In the opinion of the KNKF the Disciplinary Committee did not sufficiently explain why bondage to the Doping Regulations was unreasonable heavy. Person was also still in a period of imposed exclusion. During this exclusion the person in question must always be available for doping tests. Person carried in his defence that the acquittal not just came about and he hopes it stays with an acquittal. Its membership is not renewed and therefore expired. He assumed that he could only be submitted to doping tests during the first year after his suspension. Since then he stopped power lifting and he continued the strongest man competitions.
The appeal committee considered that the print of the register of members of the KNKF showed that person in question was no longer a member. The appeal committee considered that the existence of a membership of an association is an unconditional prerequisite to be to make Doping Rules applicable.
The appeal committee is of the opinion that the person concerned at the time of the doping no longer was a member. Declarant is therefore inadmissible in its declaration. Given this, the Disciplinary Committee declarant wrongly received its complaint. The costs associated with the treatment of this case will be charged to the declarant.

The Dutch Royal Strength Sport Fitness Federation (KNKF) has reported an anti doping rule violation against the Person after his sample tested positive for the prohibited substances 19-norandrosterone (Nandrolone), Stanozolol and Testosterone. After notification the Person filed a statement in his defence.

Person submitted in his defence that he retired from sport some time before the Doping Control. Evidence of the KNKF showed that the person was not longer a member on January 2007 while the doping control test took place in October 2007.

In view of the evidence provided by the KNKF the Disciplinary Committee finds it sufficiently proven that person retired from sport and his membership was terminated well before the date of the actual doping control. The Disciplinary Committee rules that the Person should not have been selected. The positive result following the doping control is not an anti-doping rule violation and the Person is therefore acquitted.

The Dutch Royal Strength Sport Fitness Federation (KNKF) has reported an anti doping rule violation against this person because of the discovery of the prohibited substances 2α-methyl-5α-androstan-3α-ol-17-one (metabolite of Drostanolone), boldenone and 17α-methyl-5β- androstane-3α, 17β-diol (metabolite of methyl testosterone) in the A portion of the urine sample of the person concerned during an out of competition test. Person has filed a statement of defence. The case was handled in writing while Federation and person in question waived their right of a hearing in person.
Upon arrival at the laboratory the seal of the laboratory bag containing the urine sample of the person in question was not present. As explained in the documentation this did not affect the identity and integrity of the individual urine sample.
Person acknowledges in his defence that he has committed the offense. The person concerned argued that not all used food supplements were mentioned during the doping control and that he was totally unaware of the prohibited substances in the product used. Person concerned stated never to have used the supplements. He stated that he had been to a supplement company in complete trust. He states that he was naive thrusting the company. However, the defence of the person concerned is ineffective. The mere presence of a prohibited substance is namely already a violation of the Anti-Doping Rules. The Disciplinary Committee considers the offense sufficiently plausible and the offense proven.
Since it is a first offense, it will be punished with an exclusion for a period of two years. Person concerned appeals on mitigating circumstances. On the basis of the documents provided it was clear person in question was taking supplements on a regular basis without the determination whether these preparations contain prohibited substances. Subject has thus taken a risk. There is no absence of significant fault or negligence, so there is no reason to reduce the sanction. The costs associated with the treatment of this case were also charged to the person concerned.