CAS 2009/A/1752 Vadim Devyatovskiy v/ IOC
CAS 2009/A/1753 Ivan Tsikhan v/ IOC

CAS 2009/A/1752 Vadim Devyatovskiy v. International Olympic Committee (IOC) & CAS 2009/A/1753 Ivan Tsikhan v. IOC

Related cases:

• IOC 2008 IOC vs Ivan Tsikhan
  December 11, 2008
• 2008 IOC vs Vadim Devyatovskiy
  December 11, 2008
• IOC 2012 IOC vs Ivan Tsikhan
  December 5, 2012
• CAS 2015_A_3977 WADA vs Belarus Athletic Federation & Vadim Devyatovskiy
  March 31, 2016
  
  

• Athletics (hammer throw)
• Doping (testosterone)
• Substantial change regarding the allocation of the burden of proof in the IOC ADR 2008
• Resolution of conflicts on the basis of the tempus regit actum and contra preferentem principles
• Interruption of the automated testing procedure and transparency of the testing process
• Refusal to disclose validation studies and consequences on the burden of proof of the athletes
• Strict observation of the mandatory safeguards and strict liability for doping offences

1. The allocation of the burden of proof and the standard of proof to be applied have essential significance in doping cases. In its adoption of the IOC ADR 2008, the IOC chose to deviate from the language of Art. 3.2.1 of the WADC 2003. It amended the language of previously governing Art. 3.2.1 in order to reverse the burden of proof from the IOC to the athlete to show that the departure from the ISL could have reasonably caused the Adverse Analytical Finding. Accordingly, in addition to being charged with the burden of showing that a departure from the ISL has occurred as required under the WADC 2003, the athlete is now forced to bear the burden of proof to establish that the departure had not only occurred, but also that it had reasonably caused the Adverse Analytical Finding. This is a substantial change from the burden of proving the mere fact of a departure from the ISL.

2. The WADC 2003 and the IOC ADR 2008 do not foresee how the conflict in the contradictory wording of their provisions is to be resolved. The doctrine that an accused party can be tried and sanctioned only under the laws which governed at the time the offending act was committed, the exception being the principle of lex mitior, is a fundamental principle of law which is accepted by the majority of national jurisdictions, including Switzerland. Contradictions in the applicable rules must be interpreted contra proferentem, i.e., to the detriment of the promulgator of the conflicting or contradictory provision. This view is supported by international judicial practice.

3. The purpose of the relevant procedural safeguards set down in the ISL and the Technical Documents is (1) to heighten caution and care in the movements of the analysts while conducting the analysis and (2) to provide the athlete the documentary basis upon which he can ensure the correctness and accuracy of the testing procedure. If a Technical Document provides that, with regard to aliquots, the Laboratory Internal Chain of Custody should record all movement from preparation through analysis, the interruption of the automated testing procedure of the instrument for the purpose of manually exchanging aliquot fractions in a given slot of the auto-sampler constitutes a “movement” which needs to be recorded in the appropriate document. This directive is obviously intended to provide a procedural safeguard ensuring the accountability and control of the run. By “cutting and pasting”, by manually re-constructing the original Sequence List in such a manner that its deviation from the original would not be noticed, the laboratory analyst violates a fundamental safeguard which ensures transparency to the testing process and its authenticity.

4. Although a laboratory must be given certain discretion in the disclosure of its validation studies required for accreditation by WADA, in case where the athletes have focused their request for information upon a specific item of reference and the laboratory chose not to furnish the specific information requested, it cannot place the athletes at a procedural disadvantage in bearing their burden of proof, where the evidence requested is critical to their defence and the laboratory remains in exclusive control of its disclosure.

5. Doping is an offence which requires the application of strict rules. If an athlete is to be sanctioned solely on the basis of the provable presence of a prohibited substance in his body, it is his or her fundamental right to know that the Testing Authority, including the WADA-accredited laboratory working with it, has strictly observed the mandatory safeguards. Strict application of the rules is the quid pro quo for the imposition of a regime of strict liability for doping offenses.

The Belarussian Athletes Vadim Devyatovskiy and Ivan Tsikhan participated in the Men’s Hammer Throw Competition at the Beijing 2008 Olympic Games.

In August 2008 the IOC reported anti-doping rule violations against these two Athletes after their A and B samples tested positive for the prohibited substance Testosterone, with a T/E ration above the WADA threshold.

Consequently the IOC decided on 11 December 2008 to disqualify the two Athletes and their results obtained at the Men's Hammer Throw event.

Hereafter in December 2008 both Athletes appealed the IOC decisions with the Court of Arbitration for Sport (CAS). They requested the Panel to set aside the Appealed Decisions and to reverse the disqualification of their results.

The Athlete's alleged that the IOC Disciplinary Commission was wrong to hold that the IOC had established to the requisite standard of comfortable satisfaction under the IOC ADR 2008 that there was the presence of Testosterone in each Athlete’s body (a) at a T/E ratio threshold above 4.1; and (b) with GC/C/IRMS results demonstrating exogenous origin.

The IOC contended that the Laboratory’s analyses are clear and an endogenous production of Testosterone can be excluded. It has been shown that the Testosterone found in the bodily samples of the Athletes was of exogenous origin as the T/E ratios were more or less twice as high as the authorized threshold.

Further the IOC asserted that the Athletes failed to provide plausible explanations for the adverse analytical findings. They focus on some alleged departures from the ISLs and raise technical issues in a desperate attempt to show that the analyses performed by the WADA-accredited Laboratory in Beijing are not valid and that technical failures could have caused the adverse analytical findings.

Following assessment of the evidence and the issues raised by the parties the Panel established violations of the Laboratory's documentation and reporting requirements of ISL 5.2.6.1 and 5.2.6.3 in conjunction with WADA Technical Document TD2003LCOC, in addition to a violation of the “Different Analysts” rule set out in ISL 4.3.4.3.2.2.

The Panel deems that the transparency of the test analysis is denied to the Athletes. Verification of the test results is not possible. In the case at hand, transparency and verification of the testing process represent fundamental rights of the athlete.

In the view of the Panel these violations of the ISL of which, independently of each other, justifies the annulment of the test results. However the Panel wishes to emphasize that its decision should not be interpreted as an exoneration of the Athletes.

The Panel is not declaring that the Athletes did not, prior to the competition, administer exogenous Testosterone. The Panel is merely concluding that the IOC has not been able to prove, to the comfortable satisfaction of the Panel, diligent adherence to the rules set out in the International Standard for Laboratories and the relevant Technical Documents.

Therefore the Court of Arbitration for Sport decides on 10 June 2010:

1.) The appeals filed by Vadim Devyatovskiy and Ivan Tsikhan are upheld.

2.) The Decisions of the IOC Disciplinary Commission dated 11 December 2008 regarding the Athletes Vadim Devyatovskiy and Ivan Tsikhan are set aside.

3.) The medals and diplomas awarded to the Appellants are to be returned to them.

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

CAS 2011/A/2658 British Olympic Association (BOA) v. World Anti-Doping Agency (WADA)

This Award concerns a Bye-Law that the British Olympic Association (BOA) adopted about twenty years ago and has been amended several times since; the most recent version is in force since 1 January 2009.

The Bye-Law essentially provides that any British athlete

“who has been found guilty of a doping offence … shall not … thereafter be eligible for consideration as a member of a Team GB or be considered eligible by the BOA to receive or to continue to benefit from any accreditation as a member of the Team GB delegation for or in relation to any Olympic Games, any Olympic Winter Games or any European Olympic Youth Festivals”.

WADA challenged the Bye-Law following and on the basis of an award of the Court of Arbitration for Sport (CAS) issued by a panel on 4 October 2011: U.S. Olympic Committee v. International Olympic Committee, CAS 2011/O/2422.

The USOC Award considered the validity of a rule of the International Olympic Committee according to which

“any person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate … in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension”

The USOC Award held that the IOC Regulation was invalid and unenforceable because it violated Article 23.2.2 of the WADA Code, which provides that a Signatory must implement enumerated Articles of the Code. The IOC Regulation was found to have changed the substance of the sanctions imposed in the WADA Code.

On 21 November 2011 the WADA Foundation Board decided that the Bye-Law was not compliant with the WADA Code. Hereafter in December 2011 the BOA appealed the WADA Decision with the Court of Arbitration for Sport (CAS).

The Panel holds that the dispute between the Parties here involves one means of pursuing the fight against doping, not the fight itself. The Bye-Law prevents an athlete who has had a doping offence from being selected to represent the British Olympic Team.

The core issue to be determined here is whether BOA may pursue that policy on its own or whether that policy must be pursued, if at all, through the world-harmonized WADA Code.

Following assessment the Panel finds that the Bye-Law renders an athlete ineligible to compete and does so on the basis of prior undesirable behaviour: the commission of a doping offence under the WADA Code. The fact that the Bye-Law
foresees a possibility of an Appeal Procedure is certainly a good instrument to avoid totally disproportionate decisions.

However, this does not change the nature of the (disciplinary) consequences of the Bye-Law and, accordingly, its non-compliance with the WADA Code: The proportionality of sanctions for anti-doping offences shall be evaluated within the worldwide harmonized system of the WADA Code – and
cannot be the object of an additional disciplinary proceedings triggered by the same offence.

The Panel concludes that the Bye-Law is a doping sanction and is therefore not in compliance with the WADA Code. It
confirms the view of the WADA Foundation Board as indicated in its Decision.

Therefor the Court of Arbitration for Sport decides on 30 April 2012:

1.) The Appeal is dismissed, and the decision of the WADA Foundation Board of 21 November 2011 is confirmed.

2.) The costs of the arbitration, to be determined and served on the Parties by the CAS Court Office, shall be borne by the British Olympic Association.

3.) Each Party shall bear its own legal fees and other expenses in connection with this arbitration.

4.) All further and other claims for relief are dismissed.

Avis Consultatif TAS 2009/C/1824 CIO

CAS 2009/O/1824 IOC

To confront former offenders-and in so doing preventing potential future offenders from participating in the Olympic Games, the IOC Executive Board enacted at its meeting in Osaka (Japan) the following rule which came to be known as the “Osaka Rule” on June 27 20081:

“The IOC Executive Board, in accordance with Rule 19.3.10 OC and pursuant to Rule 45OC, hereby issues the following rules regarding participation in the Olympic Games:

1.) Any Person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension.
2.) These Regulations apply to violations of any anti-doping regulations that are committed as of 1 July 2008. They are notified to all International Federations, to all National Olympic Committee and to all Organizing Committees for the Olympic Games.”

However on 4 October 2011 the CAS Panel rendered its decision in the case CAS 2011/O/2422 USOC v. IOC about the validity of the “Osaka Rule”.

The Panel declared “the IOC Executive Board’s 27 June 2008 decision prohibiting athletes who have been suspended for more than six months for an anti-doping rule violation from participating in the next Olympic Games following the expiration of their suspension […] invalid and unenforceable.”

Hereafter in April 2009 the IOC requested CAS for an Advisory Opinion (CAS 2009/C/1824 IOC) about the “Osaka Rule”.

The CAS Panel found in their Advisory Opinion the regulation to be valid because it was not a “sanction rule” but an “entry rule” that in effect only prevented athletes from competing in an “event” - the Olympic Games - which is wholly controlled by the IOC.

As support for its “entry rule” determination, the Panel pointed to previous IOC decisions to exclude or permit other groups from the Olympic Games, such as professionals. The Panel reasoned that the IOC was not issuing a “sanction” but was instead opting not to accept the registration of a group of athletes, those suspended for more than six months for doping, at the Olympic Games.

Therefore the Panel deems on 11 June 2009 that the IOC is entitled to submit concerned parties and person to the Decision of 27 June 2008 of the IOC Executive Board.

CAS ad hoc Division (O.G. Sydney) 00/006 Dieter Baumann / International Olympic Committee (IOC), National Olympic Committee of Germany and International Amateur Athletic Federation (IAAF)

• Athletics
• Doping (nandrolone)
• Removal of accreditation for the Olympic Games
• CAS jurisdiction
• Principle of res judicata
• De novo hearing

1. By reason of their commitment to the Olympic Movement and their participation in the Olympic Games, the IFs must be deemed to have subscribed to the arbitration clause in the Olympic Charter.

2. A res iudicata defence can only succeed if the parties and the subject matter of the new dispute are the same as in the former action.

The Deutscher Sportbund e.V. (the German Sports Association, the “DSB”) held a without warning out of competition control test on 19 October 1999. The test was carried out on Mr. Dieter Baumann (the “Athlete”) while he was at training. The analysis of the A-sample in the IOC laboratory in Kreischa showed the following result: 19-norandrosteron 23.2 ng/ml and 19 noretiocholanolon 5.1 ng/ml. The B-sample test was norandrosteron 20.7 ng/ml. On 15 November 1999, the DSB arranged for another test to be carried out on the Athlete without giving warning. The analysis of the A-sample in the IOC laboratory Cologne shows the following result: 19 norandrosteron 24 ng/ml. The B-sample test was 26 ng/ml. The Athlete was given a hearing before the Anti-Doping Commission of the Deutscher Leichtathletikverband e.V. (the “DLV”). On 19 November 1999, the Anti-Doping Commission of the DLV temporarily suspended the Athlete on the grounds of a suspected doping offence. On 29 and 30 November 1999, employees of the IOC laboratory in Cologne took food substitutes and cosmetics from the Athlete’s home for the purpose of examining them and to locate a possible source for the positive findings. On 1 December 1999, an examination of a tube of toothpaste of the brand “Elmex” taken from the Athlete’s house revealed that the toothpaste contained norandrostendion. On 1 December 1999, an excretion test with a test person in the IOC laboratory in Cologne showed a positive finding in respect of nandrolon-metabolites after a specially prepared toothpaste containing norandrostendion had been used (Analysis of Prof. Dr. W. Schänzer, 2 December 1999). On 2 December 1999, the Athlete reported the commission of an offence by persons unknown to the Tübingen public prosecutor’s office. He claimed that his toothpaste had been manipulated. The public prosecutor’s office commenced an investigation. On 7 December 1999, while searching the Athlete’s house the police found a tube of toothpaste of the brand “Signal” in a sport bag in the basement. An examination of it showed that the toothpaste contained norandrostendion. On 30 May 2000, the Tübingen public prosecutor’s office discontinued the investigative proceedings started by the Athlete on the basis that no criminal involvement by a third party could be established. On 23 June 2000, the Rechtsausschuss (Legal Committee) of the DLV removed the Athlete’s suspension on the grounds that the necessary suspicion for a doping offence did not exist. On 13 July 2000, the Athlete was cleared by the Legal Committee of the DLV in respect of the doping suspicions. On 11 August 2000, a “Notice of Referral to Arbitration and Statement of the IAAF” was received by the DLV.
In August 2000, the Athlete was nominated by the NOC as a member of the German Olympic Team. On 30 August 2000, the Regional Court of Stuttgart granted an interim order against the IAAF on the application of the Athlete. Pursuant to such order the IAAF was prohibited under penalty of up to DM 500’000 for each breach from placing a competition ban on the Athlete until the end of the Olympic Games 2000 in Sydney.

CAS 2009/A/1545 Andrea Anderson, LaTasha Colander Clark, Jearl Miles-Clark, Torri Edwards, Chryste Gaines, Monique Hennagan, Passion Richardson v/ IOC - Partial Award

Ms Andrea Anderson, Ms LaTasha Colander Clark, Ms Jearl Miles-Clark, Ms Torri Edwards, Ms Chryste Gaines, Ms Monique Hennagan and Ms Passion Richardson are all track and field athletes from the United States of America. The Athletes participated in the Sydney Olympic Games in 2000 as members
of the U.S. Olympic team sent by the United States Olympic Committee (USOC).

Following investigations the United States Anti-Doping Agency (USADA) reported in 2003 that the Bay Area Laboratory Cooperative (BALCO) was involved in a conspiracy for the purpose of the distribution and use of doping substances and techniques. These substances were either undetectable or difficult to detect in routine drug testing.

BALCO is alleged to have distributed several types of banned doping agents to professional athletes in track and field, baseball and football. Thereupon multiple athlete's were charged and convicted for the use of various performance-enhancing drugs.

Consequently on 10 April 2008 the International Olympic Committee (IOC) decided to disqualify the USOC women relay teams and their results obtained at the Sydney 2000 Olympic Games because of their use of prohibited substances provided by BALCO.

Hereafter in April 2008 the Athlete appealed the IOC decision with the Court of Arbitration for Sport (CAS).

This partial award concerned solely the IOC 3-year rule challenged by the Athletes. The Athletes asserted that this 3-year rule provided for in Rule 25.2.2.4 of the 2000 Olympic Charter prohibited the IOC from challenging their results at the
Sydney Olympics after 1 October 2003. Therefore, the Athletes request that the Appealed Decision be annulled.

The Panel assessed and addressed the following issues:

• Which version of the Olympic Charter is applicable to the present case?
• Does the three-year rule impose a limitation only to challenges brought by third parties or also to the power of the IOC to change its own decisions?
• Does the three-year rule only apply to decisions taken by the IOC?
• Under the relevant rules, was a decision reached in the context of the 2000 Olympic Games with regard to the distribution of medals to the Athletes?

The Panel determines that it is undisputed that on 30 September 2000 the Athletes received their relay medals from the IOC on the basis of and in compliance with the ranking provided by the lAAF and published by the SOCOG.

The Panel concludes that the IOC took no decision in the sense of Rule 25.2.2.4 of the 2000 Olympic Charter and Rule 6.4 of the 2008 Olympic Charter. As a consequence, the three-year rule did not preclude the IOC from taking the decision to withdraw from the Athletes the medals awarded for the
4x100 and 4x400 relay races of the Sydney Olympic Games of 2000.

The Panel thus deems that, as the Athletes' preliminary objection based on three-year rule has failed, the present case must proceed on the merits.

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

1.) Rule 25.2.2.4 of the Olympic Charter in effect in 2000 did not preclude the IOC from taking a decision concerning the medals awarded for the women's 4x100 and 4x400 athletics relay races of the Sydney Olympic Gatnes of 2000.

2.) The exception submitted by Ms Andrea Anderson, Ms LaTasha Colander Clark, Ms Jearl Miles-Clark, Ms Tori Edwards, Ms Chryste Gaines, Ms Monique Hennagan and
Ms Passion Richardson on the basis of Rule 25.2.2.4 of the Olympic Charter in effect in 2000 and of Rule 6.4 of the Olympic Charter in effect in 2008 is dismissed.

3.) The CAS retains jurisdiction to adjudicate on the merits the appeal submitted by Ms LaTasha Colander Clark, Ms Jearl Miles-Clark, Ms Torri Edwards, Ms Chryste Gaines, Ms Monique Hennagan and Ms Passion Richardson against the decision of
the IOC Executive Board of 10 April 2008.

4.) All further decisions are reserved for the subsequent stages of the present appeal arbitration proceedings.

5.) The costs connected with the present partial award shall be determined in the final award.

CAS 2004/A/714 F. v. International Olympic Committee (IOC)

Related case:

IOC 2004 IOC vs Robert Fazekas
August 24, 2004

• Athletics
• Olympic Games
• Failure to submit to sample collection
• Validity of the sample collection procedure
• Doping offence

1. The presence of two witnesses (instead of one) cannot be invoked as a circumstance invalidating the entire doping sample collection procedure. According to the Rules in force, the sample collection cannot take place without the testimony of at least a witness, but the presence of two witnesses is not prohibited and is not a reason for the invalidity of the procedure. In the same way, no rule provides for the presence of a representative of the athlete at the moment the athlete passes the sample. As a result, the fact that no representative assisted the Athlete while passing the urine cannot be invoked as an irregularity affecting the validity of the sample collection procedure.

2. The athlete’s failure to provide a full urine sample cannot be excused by an alleged ignorance or inapplicability of the anti-doping rules in force at the Athens Games. It is undisputed that a full sample of 75ml was not provided. The IOC can therefore be held as having proved that a failure to submit to sample collection has occurred. The burden to prove that a compelling justification for such failure existed lies on the athlete: the “aggressive” conduct of the doping control staff resulting in a “psychological trauma” during the doping control procedure justifying the production of an insufficient sample, has not been established, and cannot be invoked as an excuse not to continue the sample collection procedure.

3. When no compelling justification for failing to submit to doping control exists, the Athlete has therefore committed an anti-doping rule infringement.

Mr. Robert Fazekas is a Hungarian Athlete competing in the men’s discus throw event at the Athens 2004 Olympic Games.

On 24 August 2004 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after he refused or failed to provide a sample for doping control. After notification the Athlete filed a statement in his defence and was heard for the IOC Disciplinary Commission.

Despite several attempts the Athlete could provide on 24 August 2004 only a (partial) sample of 25 ml of urine. The athlete stated that he decided to finish the procedure because he did not feel well. The athlete was given the opportunity to continue the sample collection at the polyclinic where medical treatment could be given to him but the athlete did not accept.

The IOC Disciplinary Commission unanimously concluded that the Athlete Mr Robert Fazenas had committed a doping offence pursuant to Article 2.3 of the Rules in that he had refused or failed to submit to sample collection.

On 24 August the IOC Executive Board, as recommended by the IOC Disciplinary Commission, decides that the Athlete:

1.) is disqualified from the men’s discus throw event, where he had placed first;

2.) is not awarded a gold medal or diploma;

3.) is excluded from the Games of the XXVIII Olympiad in Athens in 2004; and

4.) shall have his Olympic identity and accreditation card withdrawn.

5.) The International Association of Athletics Federations (IAAF) is requested to modify the results of the above-noted event accordingly and to consider any further action within its own competence.

6.) This decision shall enter into force immediately.

Hereafter in September 2004 the Athlete Appealed the IOC decision of 24 August 2004 with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision in all counts and to award the gold medal to the Athlete for placing first.

The Athlete submited that he “rescinded” his consent to go to the Polyclinic when it became clear that the same two witnesses (that attended to the unsuccessful attempts at the Stadium) would accompany him; and also because he had been reassured (by an unnamed woman) that the partial sample was sufficient for testing.

The CAS Panel rules that the submissions of the Athlee cannot be accepted. The Panel, in fact, confirms that, pursuant to the applicable guidelines, the doping control officers present at the doping control station had the right to accompany the Athlete to the Village Polyclinic.

In addition, the Panel remarks that the Athlete at the hearing admitted that at the end of the procedure he was rather calm, and that he was perfectly aware of the consequences of his decision not to go to the Village Polyclinic. Finally, the Panel stresses that the Athlete could not rely on any declaration, by whomsoever made, as to the sufficiency of 25ml for testing, while it was all the way clear that he had to provide a quantity of 75ml of urine.

In the light of the foregoing, the Panel decides on 31 March 2005 that the appeal has to be dismissed and the IOC Decision of 24 August 2004 has to be confirmed.

CAS 2010/A/2161 Wen Tong v. International Judo Federation (IJF)

• Judo
• Doping (clenbuterol)
• Right to attend or have the athlete’s representative attend the B’ sample opening and analysis
• Procedural mistake

1. According to the 2009 IJF Anti-Doping Regulations (ADR), the athlete has the right to be present for the opening and analysis of his/her B sample regardless of whether it is the athlete or the IJF who requests testing of the B sample.

2. It is now established CAS jurisprudence that the athlete’s right to attend the opening and analysis of her B sample is fundamental and, if not respected, the B-sample results must be disregarded. This is so even if denial of that right is unlikely to affect the result of a B-sample analysis.

3. When the analysis of the B- sample is conducted without the athlete being given due notification of the relevant date and time, it is not possible to remedy such a procedural error through the course of the arbitral process. In contrast to violations of the athlete’s right to be heard, the arbitration cannot substitute the presence (in its widest definition) of a representative of the athlete at the opening of the B-sample.

In September 2009 the International Judo Federation (IJF) reported an anti-doping rule violation against the Chinese judoka Wen Tong after her sample tested positive for the prohibited substance Clenbuterol.

In this case the postive test result was in September 2009 only notified to the Chinese Judo Association (CJA). Only in October 2009 the Athlete learned about her test result.

The Athlete was advised by officials not to request analysis of her B sample, nor to request the documentation packages of her samples. Instead she was advised to cooperate with the IJF in order to gain leniency.

Repeatedly the Athlete's was hampered by the CJA and IJF in her effort to test her B sample. Also she was not notified in November 2009 that her B sample was tested, confirming the test result of her A sample.

Furthermore the Athlete was unaware that the IJF had decided on 4 April 2010 to impose a sanction of 2 years. Thereupon in June 2010 the Athlete only received incomplete information regarding the requested test results and the IJF Decision.

Hereafter in July 2010 the Athlete appealed the IJF Decision with the Court of Arbitration for Sport (CAS) and requested the Panel to annul the Appealed Decision.

The Athlete asserted that she was not given the opportunity to be present herself and/or by her representative for the opening and testing of her B sample in violation of Articles 7.1.4 and 7.1.6 of the 2009 IJF ADR. According to the Athlete, the right of the athlete to be present applies whenever the B sample is analyzed, irrespective of who asks for it or whether the athlete has for her part waived the analysis.

The IJF’s failure to afford the Athlete this essential right renders the B-sample analytical results invalid. As those results therefore cannot confirm the A-sample analytical results, no doping violation has been established pursuant to Article 2.1.2 of the 2009 IJF ADR.

In this case the CAS Panel agrees that the Athlete had a fundamental right to be present whenever her B sample was analyzed, regardless of who asked for it. Violation of this essential right renders the B-sample analytical results invalid. As those results therefore cannot validly confirm the A-sample analytical results, IJF has not established a doping violation pursuant to Article 2.1.2 of the 2009 IJF ADR.

The Panel wishes to emphasize that the present decision in favor of the Athlete should not be interpreted as an exoneration of her. In particular, the Panel is not declaring that the Athlete did or did not, voluntarily or not, ingest Clenbuterol.

The Panel is merely concluding that the IJF has not been able to prove, to the comfortable satisfaction of the Panel, diligent adherence to the rules set out in the applicable anti-doping regulations.

Therefore Court of Arbitration for Sport rules:

1.) The appeal of Ms Tong is upheld.

2.) The IJF’s decision dated 4 April 2010 is annulled.

3.) Ms Tong’s results at the 2009 IJF World Championships are reinstated, she is to retain the gold medal won at those Championships and she is to be reinstated to sports participation with immediate effect.

(…)

6.) All other or further claims are dismissed.

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