ISR 2009 KNKF Decision Disciplinary Committee 2009057 T

12 Jan 2010

For violating the doping regulations of the ISR, the Dutch Royal Strength Sport Fitness Federation (KNKF) reported against this person. In the A portion of the urine sample of person are prohibited substances 17β-methyl-5β-androst-1-ene-3α, 17α-diol and 17α-methyl-5β-androstane-3α, 17β-diol (metabolites of metandienone) and a testosterone / epitestosterone ratio greater than 4 detected. This result is confirmed by the analysis of the B-portion of the urine sample. The doping is held during the Open Powerlifting Championship North Holland Alkmaar. The case was orally treated with the person appeared in person.
Person relied on the inadmissibility of the KNKF related to exceeding the six-week deadline for reporting the ADRV. The Disciplinary Commission notes, however, that there is no excess of this limit. Person has no further use is made of a defence. During the hearing person said to have been taken by surprise by the doping. Person had just joined the KNKF. In his own words, he was not informed about doping and possible controls. Person states that he purchased the supplements on the Internet. He had no idea that these preparations may contain prohibited substances.
For a first offense of doping, there is a penalty of exclusion for a period of two years. Person has not previously been convicted of a doping offense. The Disciplinary Committee finds that no reasons are given for the reduction / extension of the standard sanction period. Person after suspension has not participated in power lift competitions. This period shall be deducted from the total period of exclusion. Also, 50% of the costs recovered from the person concerned. Not the total cost because the information provided by the KNKF on doping control has left much to be desired.

ISR 2009 KNKF Decision Appeal Committee 2009057 B

22 Jul 2010

For violating the doping regulations of the ISR, the Dutch Royal Strength Sport Fitness Federation (KNKF) reported against this person. In the A portion of the urine sample of person are prohibited substances 17β-methyl-5β-androst-1-ene-3α, 17α-diol and 17α-methyl-5β-androstane-3α, 17β-diol (metabolites of metandienone) and a testosterone / epitestosterone ratio greater than 4 detected. This result is confirmed by the analysis of the B-portion of the urine sample. The doping is held during the Open Powerlifting Championship North Holland Alkmaar. The case was orally treated with the person appearing in person.
Person relied on the inadmissibility of the KNKF related to exceeding the six-week deadline for reporting the ADRV. The Disciplinary Commission notes, however, that there is no excess of this limit. Person has no further use is made of a defence. During the hearing person said to have been taken by surprise by the doping. Person had just joined the KNKF. In his own words, he was not informed about doping and possible controls. Person states that he supplements to purchased on the Internet. He had no idea that these preparations may contain prohibited substances.
For a first offense of doping, there is a penalty of exclusion for a period of two years. Person has not previously been convicted of a doping offense. The Disciplinary Committee finds that no reasons are given for the reduction / extension of the standard sanction period. Person after suspension has not participated in power lift competitions. This period shall be deducted from the total period of exclusion. Also, 50% of the costs recovered from the person concerned. Not the total cost because the information provided by the KNKF on doping control has left much to be desired.

The KNKF Appeal committee decides on 22 July 2010 to dismiss the appeal and to uphold the impose a 2 year period of ineligibilty.

Consumption and biochemical impact of commercially available plant-derived nutritional supplements.

1 Sep 2012

Journal of the International Society of Sports Nutrition 2012, 9:28
Paolo Borrione, Marta Rizzo, Federico Quaranta, Emanuela Ciminelli, Federica Fagnani, Attilio Parisi and Fabio Pigozzi

Background: A growing consumption of natural (plant-derived) dietary supplements with ergogenic aims, with particular regard for ecdysteroids, phytoestrogens and vegetal sterols, has been registered over the last years among “recreational” athletes. The present study was carried out in order to evaluate the real knowledge of plant-derived nutritional supplements among physically active people as well as their real consumption. Additional aim was to evaluate the effects of these supplements on the health profile of the users.

Methods: Twenty-three trained subjects who habitually used natural dietary supplements, and 30 matched controls
were analyzed for plasma biochemical markers and hormonal profile.
Results: The laboratory tests revealed the absence of any sign of organ toxicity/damage in both athletes and controls. On the contrary, hormone profiles revealed marked alterations in 15 (65%) out of the 23 of investigated athletes. Specifically, 10 males presented increased plasma levels of progesterone, 15 subjects presented abnormal estrogen levels, including 5 (2 F and 3 M) presenting a “dramatic” increased estrogen values and 2 two males with increased estrogen levels, increased testosterone levels and associated suppression of luteinizing hormone and follicle-stimulating hormone.

Conclusions: The results of the present study highlighted that the habitual consumption of plant-derived nutritional supplements is frequently associated with significant hormonal alterations both in male and female subjects. Although these biochemical alterations were not associated with signs or symptoms of organ toxicity/
damage at the moment of the study, it cannot be excluded that, in the mid/long-term, these subjects would suffer of health problems secondary to chronic exposure to heavily altered hormonal levels. Further large scale studies are needed to confirm the results of this pilot study as well as to investigate the biological mechanisms at the base of the observed hormonal alterations.

The selective androgen receptor modulator GTx-024 (enobosarm) improves lean body mass and physical function in healthy elderly men and postmenopausal women: results of a double-blind, placebo-controlled phase II trial

1 Sep 2011

J Cachexia Sarcopenia Muscle. 2011 September; 2(3): 153–161.
Dalton JT, Barnette KG, Bohl CE, Hancock ML, Rodriguez D, Dodson ST, Morton RA, Steiner MS.

BACKGROUND:

Cachexia, also known as muscle wasting, is a complex metabolic condition characterized by loss of skeletal muscle and a decline in physical function. Muscle wasting is associated with cancer, sarcopenia, chronic obstructive pulmonary disease, end-stage renal disease, and other chronic conditions and results in significant morbidity and mortality. GTx-024 (enobosarm) is a nonsteroidal selective androgen receptor modulator (SARM) that has tissue-selective anabolic effects in muscle and bone, while sparing other androgenic tissue related to hair growth in women and prostate effects in men. GTx-024 has demonstrated promising pharmacologic effects in preclinical studies and favorable safety and pharmacokinetic profiles in phase I investigation.

METHODS:
A 12-week double-blind, placebo-controlled phase II clinical trial was conducted to evaluate GTx-024 in 120 healthy elderly men (>60 years of age) and postmenopausal women. The primary endpoint was total lean body mass assessed by dual energy X-ray absorptiometry, and secondary endpoints included physical function, body weight, insulin resistance, and safety.

RESULTS:
GTx-024 treatment resulted in dose-dependent increases in total lean body mass that were statistically significant (P < 0.001, 3 mg vs. placebo) and clinically meaningful. There were also significant improvements in physical function (P = 0.013, 3 mg vs. placebo) and insulin resistance (P = 0.013, 3 mg vs. placebo). The incidence of adverse events was similar between treatment groups.

CONCLUSION:
GTx-024 showed a dose-dependent improvement in total lean body mass and physical function and was well tolerated. GTx-024 may be useful in the prevention and/or treatment of muscle wasting associated with cancer and other chronic diseases.

CAS 2005_A_951 Guillermo Cañas vs ATP - Revision

23 May 2007

CAS 2005/A/951 Guillermo Cañas v. ATP Tour, revised award of 23 May 2007

Related case:

  • ITF 2005 ATP vs Guillermo Cañas
    August 7, 2005
  • Swiss Federal Court 4P.172_2006 Guillermo Cañas vs ATP Tour & CAS
    22 March 2007

  • Tennis
  • Doping (hydrochlorothiazide)
  • Burdens and standards of proof
  • Duty of utmost caution
  • Level of fault or negligence

1. Under the ATP Rules, once it has been established that a Prohibited Substance was present in the player’s specimen, there is a Doping Offense. The burden of proof then shifts to the player to establish by a balance of probability, first how the prohibited substance entered his system, and second that he bears No Fault or Negligence, or in the alternative No Significant Fault or Negligence, for the Doping Offense in order for the two years period of ineligibility to be eliminated or reduced.

2. A player is being clearly negligent when relying blindly on the system set up to take care of him at a Tournament site, assuming that it is foolproof. The player has a duty of utmost caution after visiting the Tournament doctor, when actually ingesting medications. It would be normal for him to rely on the trustworthiness and knowledge of the Tournament doctor if the doctor handed the medications to him, but any professional athlete these days has to be wary when, as in this case, he receives medications which, he knows, have gone through several hands. Thus, the player cannot establish that he bears No Fault or Negligence for the Doping Offense.

3. What is determinative of the level of fault or negligence is not only what the player actually knew or expected but also what he could have suspected.



In March 2005, the Association of Tennis Professionals (ATP) has reported an anti-doping rule violation against the Athlete Guillermo Cañas after his A and B samples tested positive for the prohibited substance hydrochlorothiazide (HCT). After notification the Athlete was heard for the ATP Anti-Doping Tribunal.

The Athlete stated that he had no idea how he took the prohibited substance. Arriving at the tournament he suffered from a sore throat and symptoms of a cold or influenza. He went for a prescription at the offices of the ATP physicians and before using he didn't read the label.

The Athlete argued that it is likely that the prescription of the ATP physicians is the source of the contamination, which would mean the ATP is the origin of the contamination. The small amounts of the prohibited substances prove it was not taken to eliminate other doping substances. The urine was insufficiently diluted to have traces of other substances, this is a technical violation of the Anti-Doping

The ATP Tribunal concluded that not has been established how the prohibited substance had entered his body. There is no evidence that the contamination is caused by the medicine he claimed to have used. He also didn’t reseach the ingredients of the medication before using. Therefore the ATP Anti-Doping Tribunal decided on 7 August 2005 to impose a 2 year period of ineligibility on the Athlete, starting on 11 June 2005.

Hereafter in August 2005 the Athlete appealed the ATP decision of 7 August 2005 with the Court of Arbitration for Sport (CAS).

Considering the evidence and statements the Panel finds that the Athlete has established that he bears No Significant Fault or Negligence in this exceptional case although he acted negligently in ingesting a banned substance.

The majority of the Panel rejected the Athlete’s arguments regarding EU law. Assuming that EU law would be applicable to the present case, as alleged by the Athlete and such application of EU law has not been specifically agreed by the parties, the Panel is of the view that the present decision does not violate EU law.

Thefore the Court of Arbitration for Sport decides on 23 May 2007:

1.) The appeal filed by the Athlete Mr Guillermo Cañas on 29 August 2005 is partially upheld.

2.) Mr Guillermo Cañas has committed a Doping Offense during the “Abierto Mexicano de Tenis” held in Acapulco, Mexico on 21 February 2005 and his results from the competition shall be disqualified. Any prize money collected at such Tournament not previously returned to ATP Tour shall be returned to ATP Tour within 7 days of the date of this award.

3.) Mr Cañas shall be ineligible to compete on the ATP Tour for the fifteen months period beginning from 11 June 2005.

4.) To the extent that ATP Tour has collected prize money for competitions in which Appellant competed after the Tournament, those amounts shall be returned to Appellant by ATP Tour within 7 days of the date of this award.

5.) The award is pronounced without costs, except for the Court Office fee of CHF 500.- already paid by the Appellant and to be retained by the CAS.

6.) Each party shall bear its own costs.



Hereafter the Athlete appealed the original CAS decision of 23 May 2006 (CAS 2005/A/951) with the Swiss Federal Court.
On 22 March 2007, the Swiss Federal Court determined that the Appellant’s right to be heard was disregarded by the CAS Panel and on that basis, the Swiss Federal Court annulled the Panel’s award (Swiss Federal Court 4P.172_2006 Guillermo Cañas vs ATP Tour & CAS).

In the light of the judgment of the Swiss Federal Tribunal, the CAS Panel has reviewed the submissions and evidence originally submitted by the parties and hereby issues a new revised award (23 May 2007) in substitution of the award rendered on 23 May 2006.

CAS 2006_A_1032 Sesil Karatantcheva vs ITF

3 Jul 2006

CAS 2006/A/1032 Sesil Karatancheva v/International Tennis Federation

Related case:

ITF 2006 ITF vs Sesil Karatantcheva
January 11, 2006

On 11 January 2006 the ITF Independent Anti-Doping Tribunal decided to impose a 2 year period of ineligibility on the minor tennis player Sesil Karatantcheva after her samples - provided in France in May 2005 and in Japan in July 2005 - tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

In first instance the ITF Tribunal rejected the Athlete's defence that the positive test results are on the balance of probabilities the result of endogenous production of Nandrolone by the Athlete consequent on her pregnancy.

Hereafter in January 2006 the Athlete appealed the ITF decision with the Court of Arbitration for Sport (CAS). The Athlete requested to annul the Appealed Decision and its sanction or alternatively for a reduced sanction.

The Athlete denied that she had committed an anti-doping rule violation and asserted that the elevated levels of 19-norandrosterone were due mainly to her pregnancy condition (physiological criteria) on one hand, and biochemical influence of the regularly taken food supplements, on the other.

Further the Athlete argued that due to a series of procedural deficiencies in the management of the tests by the ITF and its agents, and of failings in the laboratories’ testing procedures which occurred during and between the Paris test and the Tokyo test, the positive findings must be deemed invalid for one or more of the following main reasons.

The ITF contended that contrary to the Athlete's pregnancy defence, the 19-norandrosterone in her samples was not endogenously produced, this being established by  documentary and expert evidence.

Also the ITF dismissed the Athlete's allegations that due to a series of procedural deficiencies in the management of the tests by the ITF and its agents, and of failings in the laboratories’ testing procedures which occurred during and between the Paris test and the Tokyo test, the positive findings must be deemed invalid.

Following weighing the scientific evidence in light of the facts of the case, the Panel considers that the concentrations of 19-norandrosterone found in the Athlete’s Paris sample deviate
from the values of 19-norandrosterone which might be found in a pregnant women in her 10th week of pregnancy, in a range that makes it very unlikely for the concentrations of 19-norandrosterone to be consistent with the normal endogenous production of 19-norandrosterone at that stage of pregnancy.

For such reason, the Panel finds that the Paris test must be deemed constitutive of a doping offence and considers it need not pronounce itself on the subsequent Tokyo test, as in any event the Paris and Tokyo tests have been treated as a single first offence for the purpose of imposing sanctions.

Furthermore the Panel finds there is no room for finding that the Athlete was not negligent or not significantly negligent. Accordingly, it need not further examine whether the Athlete met her burden of proving the exogenous source of 19-norandrosterone found in her system.

Therefore on 3 July 2006 the Court of Arbitration for Sport:

1.) Dismisses the appeal filed by Sesil Karatancheva on 27 January 2006.

2.) (…)

CAS 2004_A_690 Diego Hipperdinger vs ATP

24 Mar 2005

CAS 2004/A/690 D. Hipperdinger v/ATP
CAS 2004/A/690 H. v. Association of Tennis Professionals (ATP)

Related case:

ITF 2004 ATP vs Diego Hipperdinger

  • Tennis
  • Doping (cocaine)
  • Use of a natural product (coca tea and coca leaves) for medical purpose
  • Significant negligence
  • Sanction

1. According to Rule S1. of Appendix Three of the ATP Rules, cocaine is considered a prohibited substance. When the presence of cocaine and metabolites in the athlete’s body is not disputed, the athlete committed a doping offence in the sense of Rule C.1.a of the ATP Rules, if he did not establish a granted therapeutic use exemption.

2. A professional athlete must be considered to be highly sensitive and alert to issues of doping. The principle of strict liability means that an athlete is responsible for whatever substance is in his body, without having regard to the reasons for such presence and the degree of any respective fault of the athlete. Every athlete must therefore be concerned about substances he or she is ingesting, in particular if this is done for a medicinal purpose. The athlete who did not comply with his duty of care acts negligently and cannot be considered as bearing no fault or negligence in the sense of Rule M.5.a of the ATP Rules or no significant negligence pursuant to Rule M.5.b of the ATP Rules.

3. Under the applicable anti-doping regulations, it is not the duty of the ATP to warn athletes against the use of certain substances. While it is certainly desirable that the ATP and any IF should make every effort to educate athletes about doping, it is principally the sole duty of the individual athlete to ensure that no prohibited substances enter his body. It is therefore irrelevant whether the ATP has warned athletes against the use of natural products. The list of prohibited substances is not intended to include each and every possible ingredient or base product – whether natural or synthetic – to a substance that is prohibited.



On 24 March 2005 the Court of Arbitration for Sport hereby decides:

1.) The Appeal filed by H. is partially allowed.

2.) The Decision of the ATP Anti-Doping Tribunal dated 23 July 2004 is upheld, save points 3 and 4 which are modified as follows: “

3. [Sentence 1 is annulled] The period of ineligibility has commenced on 9 February 2004 and will end on 8 February 2006.

4. [Sentence 1 is annulled] It is ordered that medals, titles, computer ranking points and prize money earned since 9 February 2004 be forfeited. [Sentence 3 is upheld].

(…)

CAS 2008_A_1488 Laura Pous vs ITF

22 Aug 2008

CAS 2008/A/1488 Laura Pous v/ International Tennis Federatioo (ITF)

CAS 2008/A/1488 P. v. International Tennis Federation (ITF)

  • Tennis
  • Doping (hydrocholorthiazide; amiloride)
  • Duty of care of the athlete
  • Significant fault or negligence
  • Application of the transitional provisions of the 2009 WADA Code

1. In consideration of the fact that athletes are under a constant duty to personally manage and make certain that any medication being administered is permitted under the anti-doping rules, the prescription of a particular medicinal product by the athlete’s doctor does not excuse the athlete from investigating to their fullest extent that the medication does not contain prohibited substances. If the doctor is not a specialist in sports medicine and not aware of anti-doping regulations, it is of even greater importance that the athlete be significantly more diligent in his/her efforts to ensure that the medication being administered does not conflict with the Code.

2. While it is understandable for an athlete to trust his/her medical professional, reliance on others and on one’s own ignorance as to the nature of the medication being prescribed does not satisfy the duty of care as set out in the definitions that must be exhibited to benefit from finding No Significant Fault or Negligence. It is of little relevance to the determination of fault that the product was prescribed with “professional diligence” and “with a clear therapeutic intention”. To allow athletes to shirk their responsibilities under the anti-doping rules by not questioning or investigating substances entering their body would result in the erosion of the established strict regulatory standard and increased circumvention of anti-doping rules.

3. A player’s ignorance or naivety cannot be the basis upon which he or she is allowed to circumvent the very stringent and onerous doping provisions. There must be some clear and definitive standard of compliance to which all athletes are held accountable.

4. In cases where a final decision finding an anti-doping violation has been rendered prior to 1st January 2009, but the athlete is still serving his/her period of ineligibility, the athlete may apply to the relevant body for reconsideration of the sanction in light of the 2009 WADA Code.



In September 2007 the International Tennis Federation (ITF) reported an anti-doping rule violation against the Spanish tennis player Laura Pous after her sample tested positive for the prohibited substances Amiloride and Hydrochlorothiazide. The Athlete explained that the source of the positive test was a prescribed medication she had used as treatment for her condition.

Consequently the ITF Independent Anti-Doping Tribunal decided on 25 January 2008 to impose a 2 year period of ineligibility on the Athlete. Hereafter the Athlete appealed the ITF Deciscion with the Court of Arbitration for Sport (CAS).

The ITF acknowledged that the Athlete had demonstrated the source of the prohibited substances, yet it contended that she had acted with significant fault or negligence.

The Athlete admitted the violation and denied the intentional use of the substances. She requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.

In view of the evidence the Panel establishes that the Athlete's doctor was not a specialist in sports medicine and had no anti-doping knowledge. In this situation the Athlete had not duly informed him that she was an athlete subject to doping control, nor provided to him the List of Prohibited Substances.

Further the Panel determines that the Athlete failed to check her medication, nor mentioned this on the Doping Control Form. The Panel concludes that she truly acted ignorant of all the readily available resources at her disposal.

Therefore the Court of Arbitration for Sport decides on 22 August 2008:

1.) The appeal filed on 20 July 2008 by P. against the decision issued on 25 January 2008 by the ITF’s Independent Anti-Doping Tribunal is denied.

2.) The decision issued on 25 January 2008 by the ITF’s Independent Anti-Doping Tribunal is upheld.

(...)

CAS 2009_A_1782 Filippo Volandri vs ITF

12 May 2009

CAS 2009/A/1782 Filippo Volandri v. International Tennis Federation (ITF)

  • Tennis
  • Doping (Salbutamol)
  • CAS scope of review
  • Burden of proof
  • Degree of fault of the player

1. By adopting and implementing the principle of consistency with the WADAC and by adopting the commitment to “incorporate without any substantive changes” the provision of the WADAC which recognize inter alia the unrestricted scope of review of the CAS Panel as provided under R57 of the CAS Code, the 2008 ITF Programme actually solves by itself the question of the co-existence of its two apparently conflicting provisions regarding the CAS scope of review. In order to exercise its power of review (as apparently allowed by the 2008 ITF Programme), the CAS must be able to examine the formal aspects of the appealed decisions but also, above all, to evaluate – sometimes even de novo – all facts and legal issues involved in the dispute.

2. According to the ITF Programme, the fact that a player has established, on the balance of probabilities, how the specified substance entered his body and has also established, to the comfortable satisfaction of the hearing body, that his ingestion of the specified substance was not intended to enhance his sporting performance or to mask the use of another prohibited substance only allows the player to benefit from the possible elimination or reduction of the period of suspension but is irrelevant with regard to the occurrence or non occurrence of the adverse analytical finding. As the player has not offered any persuasive evidence of how the concentration found in his urine could be the result of the therapeutic use, he has not succeeded in discharging the onus on him and, hence, must be considered as having committed a doping offence.

3. The degree of a player's fault is minor if the threshold of 1,000 ng/mL is just exceeded. Furthermore, the fact that the player has never previously been found guilty of an anti-doping rule violation, and more importantly, the fact that the procedures before the IF were slow and suffered from inconsistencies, with the result that the player was left in a state of uncertainty of over 8 months before formally being charged with a doping offence, must be taken into account to assess the player's degree of fault. Such a long period is unacceptable and incompatible with the intention of the anti-doping regime that matters should be dealt with speedily.


On 15 January 2009 the International Tennis Federation (ITF) decided to impose a 3 month period of ineligibility on the Italian tennis player Filippo Volandri, including disqualification of results, after his A and B samples tested positive for the prohibited substance Salbutamol in a concentration above the threshold set in his TUE.

In first instance the ITF accepted that the violation was not intentional and that the Athlete had used too much Salbutamol as treatment for the severe asthma he suffered.

Hereafter in February 2009 the Athlete appealed the ITF Decision with the Court of Arbitration for Sport (CAS). He requested the Panel to annul the Appealed Decision and to restore his disqualified competition results.

Following assessment of the facts in this case the CAS Panel determines that although the ITF knew of the adverse analytical findings, it chose not to inform the Athlete and to let the latter take part in 19 tournaments before formally charging him with a doping offence. Such a long period is unacceptable and incompatible with the intention of the anti-doping regime that matters should be dealt with speedily.

The Panel was taken aback when it saw that on 18 September 2008 (more than 6 months after the sampling collection) the ITF requested Mr Filippo Volandri to provide details on

  • a) the time at which he last urinated prior to providing sample on 13 March 2008;
  • b) the time(s) at which he used his inhaler on 13 March 2008; and
  • c) the number of puffs he took on each of those occasions.

It is obvious that the Athlete was not in the position to answer to such questions precisely, because of ITF’s fault and was therefore deprived of the right to fair evidence proceedings, which emerges from the right to be heard, the right to a fair trial and the principle of equal treatment, which are fundamental and which were disregarded in the present case.

Based on the above considerations, the Panel is of the opinion that fairness requires that:

  • a) a reprimand is imposed upon Mr Filippo Volandri;
  • b) that no period of ineligibility is imposed on the tennis player; and
  • c) that his individual result in respect of the 2008 Indian Wells tournament only is disqualified, and in consequence, the prize money and ranking points obtained by him through his participation in that event are forfeited.

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

1.) The appeal of Mr Filippo Volandri against the decision of the ITF Independent Anti-Doping Tribunal dated 15 January 2009 is partially upheld.

2.) The decision issued by the ITF Independent Anti-Doping Tribunal on 15 January 2009 is set aside.

3.) On these grounds:

  • a.) Mr Filippo Volandri is found guilty of the anti-doping offence specified in the notice of charge set out in the ITF’s letter to the player dated 13 November 2008.
  • b.) A reprimand is imposed upon Mr Volandri.
  • c.) No period of ineligibility is imposed on Mr Volandri.

CAS 2008_A_1572 Rebeca Braga Gusmao vs FINA

13 Nov 2009

CAS 2008/A/1572 Gusmao v. FINA
CAS 2008/A/1632 Gusmao v. FINA
CAS 2008/A/1659 Gusmao v. FINA

CAS 2008/A/1572, 1632 & 1659 Rebecca Gusmao v. Fédération Internationale de Natation (FINA)

Related case:

FINA 2008 FINA vs Rebecca Gusmao
September 3, 2008


  • Aquatics (swimming)
  • Doping (testosterone)
  • Bacterial degradation of the sample and method of detection
  • Tampering with any part of doping control and proof by any reliable means
  • Effect of the relocation of a laboratory on its accreditation
  • Production of new evidence
  • Notice of the first anti-doping rule violation
  • Lex mitior in disciplinary sanctions related to doping violations
  • Seriousness of the offence of tampering with a doping control

1. Based on scientific evidence generally available and on established case law of CAS, IRMS analysis is the established and reliable method of distinguishing the exogenous origin of testosterone. IMRS allows the direct detection of the exogenous origin of testosterone and is not affected by dilution, bacterial degradation or a pathological state such as POS. In this respect, dilution and bacterial degradation do not exclude the application of the IRMS analysis.

2. Tampering with doping control can be proven by any reliable means; the term “any reliable means” includes any way to establish a proof as in any other area of law. In a situation where the analysis designed to detect prohibited substances which was conducted in a WADA accredited laboratory, based on the steroid profiles and other parameters, reveals that the samples collected from the same athlete on different occasions actually do not stem from the same person, anti-doping rules do not exclude that further investigations concerning the non-identity of the donors can be made by a non-WADA-accredited laboratory.

3. The relocation of an accredited laboratory to a new building does not affect the existing accreditation which refers to the whole of the analysis devices and methods rather than to the physical building. A new accreditation is necessary for temporary “satellite facilities” of laboratories established for the purpose of major events but not for the permanent relocation of a laboratory.

4. Under “exceptional circumstances” Article R56 of the CAS Code allows the president of the panel to authorize the parties “to supplement their arguments … or to specify further evidence … after the submission of the grounds for the appeal and of the answer”. The unambiguous wording of that clause, supported by its systematic position before Article R57 of the CAS Code which deals with the hearing, clarifies that Article R57 of the CAS Code does not cover the production of new evidence after the closure of the hearing.

5. In the normal course of the handling of an alleged anti-doping rule violation, the notification in the results management process is a sufficient condition for a second violation. This is more than the knowledge of the mere laboratory report of an adverse analytical finding. The notification is issued only if the initial review conducted by the responsible anti-doping organization leads to the result that no therapeutic use exemption has been granted and no apparent procedural departure undermines the validity of the analytical finding. At that stage in the normal course of a doping case it is likely that an anti-doping rule violation was actually committed and, generally, the athlete is provisionally suspended. All further steps which are available to the athletes – request for the analysis of the B sample, request for a hearing, appeal of decisions etc. – are legal remedies which, as such, do not affect the validity of the suspension or other decisions. For the purpose of imposing sanctions for multiple violations, an anti-doping rule violation does not only exist when the last decision is taken which is final and binding. An interpretation to the contrary would open a period of time where, after the notification, an athlete could commit further doping offences without the risk of lifetime ineligibility for a second violation.

6. Even in cases where neither party makes submissions related to the lex mitior principle a CAS panel has to apply the applicable rules which include the transitory provisions. Therefore the panel has to consider whether the substantive rules of FINA’s Doping Control Rules (2009) constitute a lex mitior. The rules governing the length of a doping sanction are substantive anti-doping rules. This determination has to be made under the circumstances of the particular case.

7. Tampering is a particularly serious offence because tampering reveals that the athlete knew about the presence of the prohibited substance which she tried to hide by the manipulation. It is not only the intake of the prohibited substance but also the additional effort to manipulate the doping control either individually or in collaboration with a doctor.



Ms. Rebeca Braga Gusmao filed three appeals against the decisions of the Doping Panel of the Fédération Internationale de Natation (FINA) dated 12 May 2008, 17 July 2008, and 3 September 2008 respectively, which stated various anti-doping rule violations allegedly committed by her and, in the most recent of which, Ms. Gusmao was declared ineligible to compete for life. The appeals have been consolidated and are heard by this Panel.

The Athlete, was born in 1984 and is of Brazilian nationality. She is an international level athlete included in FINA´s Testing Pool who competed in national and international swimming competitions since 1998. She is affiliated to the Confederacao Brasiliera de Desportivos Aquaticos (CBDA).

The Athlete appealed three decisions of the FINA Doping Panel (DP) which each determined a single anti-doping rule violation. Two of them refer to the presence of a prohibited substance found in the samples collected from the Athlete in doping tests conducted on 25 and 26 May 2006 (CAS/A/1632) and on 13 July 2007 (CAS/A/1572), respectively.

The third alleged anti-doping rule violation concerns tampering with the doping control conducted on 12 July 2007 and a control conducted on 18 July 2007 (CAS/A/1659). All three appeals, albeit consolidated, are independent in their substance and the anti-doping rule violations must be determined each for itself. They are, however, interrelated with regard to the possible sanction the Panel has to determine.

Following assessment of the case the Panel determines:

  • Ms. Gusmao committed three anti-doping rule violations, two of them, committed on 25 and 26 May 2006 and on 13 July 2007, respectively, in the form of the presence of the prohibited substance Testosterone, according to FINA´s Doping Control Rules (DC) DC 2.1, and one, committed on 12 July 2007 in the form of tampering with a doping control, according to DC 2.5.
  • As Ms. Gusmao had received notice of the anti-doping rule violation based on the samples collected on 25 and 26 May 2006 on 11 May 2007, at the latest, the doping offences occurred on 12 July 2007 and 13 July 2007 both constitute a second anti-doping rule violation, according to DC 10.6.
  • Therefore, Ms. Gusmao is to be declared ineligible to compete for lifetime, according to DC 10.2 in conjunction with DC 10.4.1, as from the date of this award, i.e. 13 November 2009.
  • The results Ms. Gusmao obtained during the Brazilian Swimming Championship in May 2006 are automatically disqualified with all consequences. Ms. Gusmao has to return any medals, diploma, rewards, prize money, according to DC 9. All results Ms. Gusmao obtained as of 12 July 2007 are disqualified with all consequences, by this award. Ms. Gusmao has to return any medals, diploma, rewards, and prize money obtained since that date.

Therefore the Court of Arbitration for Sport decides on 13 November 2009 that:

1.) The appeals filed by Ms. Gusmao on 12 May 2008, 17 July 2008 and 3 September 2008 are dismissed.

2.) The decisions adopted by the Doping Panel of FINA dated 12 May 2008, 17 July 2003, and 3 September 2008 are upheld as far as they do not contradict this Award.

3.) Ms. Gusmao is declared ineligible to compete for life as from 13 November 2009.

4.) All results obtained by Ms. Gusmao during the Brazilian Swimming Championship in May 2006 and all results obtained as from 12 July 2007 are disqualified. Ms. Gusmao is ordered to return all medals, diploma, rewards and prize money, accordingly.

5.) This award is pronounced without costs, except for the Court Office fee of CHF 500, which is retained by the CAS. Each party will bear its own legal costs and other expenses, except for a contribution of CHF 3000 to the legal costs of the Respondent which Appellant shall pay.

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

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