CAS 2002/A/432 D. / Fédération Internationale de Natation (FINA)

• Swimming
• Doping (nandrolone)
• FINA’s competence to initiate disciplinary proceedings
• Strict liability
• Negligence of the athlete
• Prohibition of the reformatio in pejus
• Future implementation of the World Anti-doping Code: consequences on the sanctions

1. In accordance with the FINA Rules, a review by the FINA Doping Panel of a decision rendered by a member federation can be ordered by the Executive if it “believes” that the member federation has not followed the applicable FINA Rules. The requirement for such review is the belief that an erroneous application of the FINA Rules has, firstly, been committed and, secondly, that the erroneous application was committed by the member federation. Concerning the belief of an erroneous application of the FINA Rules, the CAS holds that such an evaluation lies within the sole judgment of the FINA Executive and that the Panel has no authority to review the Executive’s exercise of such judgment.

2. If an athlete who competes under the influence of a prohibited substance in his body is permitted to exculpate and reinstate himself in competition by merely pleading that he has been made the unwitting victim of his or her physician’s (or coaches) mistake, malfeasance or malicious intent, the war against doping in sports will suffer a severe defeat. It is the trust and reliance of clean athletes in clean sports, not the trust and reliance of athletes in their physicians and coaches which merits the highest priority in the weighing of the issues in the case at hand. If such a defence were permitted in the rules of sport competition, it is clear that the majority of doped athletes will seek refuge in the spurious argument that he or she had no control over the condition of his or her body.

3. The CAS applies the principle of the prohibition of the reformatio in pejus according to which the appeal body can modify the decision that is contested only in the interest of the appellant, without prejudice for him. There are exceptions to this principle: 1) if the appeal body must rule on the application of statutory laws, applicable ex officio, that body will be bound to deliver a decision which complies with the applicable law; 2) if the respondent lodges a counter-appeal, then the appeal body is bound to consider the claims of the respondent which, if they are granted, may result in even more prejudice to the appellant.

In September 2003 Κολυμβητική Ομοσπονδία Ελλάδος (KOE), the Hellenic Swimming Federation, has reported an anti-doping rule violation against the Athlete D. after his A and B samples tested positive for the prohibited substances 19-norandrosterone (nandrolone) and lidocaine.

Thereupon the Board of Directors of the Hellenic Swimming Federation sanctioned the Athlete with a lifetime ineligibility which was reformed by the Supreme Sports Arbitration Council to a 20 month period of ineligibility after the Athlete had filed an appeal.

Reffered to the FINA the Doping Panel decided on 26 September 2002 to impose a 4 year period of ineligibility on the Athlete including disqualification of all results achieved between March and September 2002. Hereafter the Athlete appealed the FINA decision of 26 September 2002 with the Court of Arbitration for Sport (CAS).

The Athlete disputed the jurisdiction of the FINA Doping Panel and stated that he trusted his coach that the administered injections were food supplements.

Considering the Athlete’s own statements and those of the experts, the Panel is unable to draw a final conclusion regarding the origin of the prohibited substances found in the Athlete’s body fluids, but does not exclude the possibility that the injection administered by his coach was the cause.

Having said that, however, the Panel takes the position that the Athlete clearly acted with negligence in not specifically queried both his physician and his coach regarding the identity of the substances which were administered to him.

The Panel finds that the imposed 4 year period of ineligibility on the Athlete must be shortened within the framework of such transitional rules to harmonize with the shorter sanctions under the WADC rules.

If, on the date upon which the WADC rules become effective, the remaining term of ineligibility of an athlete sentenced under the former FINA rules exceeds two years, FINA must carefully review whether any time served by the Athlete under the former FINA penalty should be credited to the term he would serve, if he had been sentenced under the new WADC rules.

The Court of Arbitration for Sport decides on 27 May 2003:

1.) The appeal filed by D. on November 25, 2002 is dismissed.

2.) The decision of the FINA Doping Panel dated September 26, 2002 is confirmed.

3.) (...)

CAS 2003/A/441 Kryxa v/PZLA

In June 2002 the Polish Athletic Federation (PZLA) has reported an anti-doping rule violation against the Athlete Violetta Kryza after her A and B samples, collected in the USA in May 2002, tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

On 26 September the PZLA Disciplinary Committee decided to impose a reprimand on the Athlete. After notification of the PZLA reprimand the IAAF informed the PZLA that the appropriate minimum penalty under the IAAF Rules is two years and asked the PZLA to reconsider the matter.

Because the PZLA Disciplinary Committee failed to respond the PZLA Council decided to appeal this case with the PAA Board which imposed on 11 December 2002 a two year period of ingeligibility on the Athlete. Yet, a PAA hearing was held without notificaton to the Athlete and the decision was communicated to her afterwards.

Hereafter in December 2002 the Athlete filed an appeal with the Court of Arbitration for Sport (CAS).

The CAS Panel finds that the failure to afford Ms Kryza a hearing on the 11 December 2002, or even to notify her that a hearing was to take place, was a serious lapse on the part of the PZLA. In addition, it was a breach of the IAAf Rules and of the principle of' "audi alteram partem".

However, in the particular circumstances of this case, and hearing in mind that Ms Kryza did not challenge the test results, which showed the presence of norandrosterone in the concentration alleged, but has, on this appeal, relied simply on the procedural lapses by the IAAF to protest timeously and PZLA's failure to notify her of the 11 December 2002 hearing, the Panel concludes albeit with considerable regret, that had Ms Kryza been affofded a hearing, it would have been inevitable that the mandatory minimum 2 year suspension would be imposed.

The Panel concludes that no substantial injustice has been done to Ms Kryza as a result of the failure to afford her a hearing.

Therefore the Court of Arbitration for Sports decides on 13 August 2003:

1.) The appeal filed by Violetta Kryza on 9 February 2003 is dismissed.

2.) The Court Office fee of CHF 500 (five hundred Swiss Francs) already paid by the Appellant shall be retained by the CAS.

3.) Each party shall beat its own costs.

CAS 2003/A/442 Fédération Française d’Escrime (FFE) / Fédération Internationale d’Escrime (FIE)

TAS 2003/A/442, Fédération Française d’Escrime (FFE) / Fédération Internationale d’Escrime (FIE)

• Fencing
• Doping
• Retroactive Suspension inposed on Athlete
• Disqualification and withdrawal of points from the team of the suspended athlete

1. According to its jurisprudence, CAS must decide within the frameword of sport law and can’t invent sanctions when they don’t exist. In other words, when the regulatory texts define the sanctions and their conditions of application to specific facts, the principle of strict interpretation must be respected in all its rigor by sports bodies and also by CAS. The possibility provided in a disposition of the FIE Technical Rules to apply the "appropriate rules" can not by itself constitute a sufficient legal basis. The literal and systematic interpretation of this disposition does not lead to the conclusion that it allows the FIE a complete blanc sign, for adopting an infinite possibility of new rules to situations at its discretion. This disposition can only refer to existing rules and provisions anywhere else.

2. If, in general, disqualification constitutes an automatic sports sanction of a competitor or his team, in the case of an individual or collective anti-doping violation, with the aim of avoiding unequal remedy between the athletes or their teams, the suspension constitutes a disciplinary sanction repressing the individual behavior of an athlete. The disqualification of a team from a competition due to the positive control of one of its members, automatic sports measure expressly according to provisions in the FIE Rules, is therefore perfectly admissible and coherent. On the other hand, the justification of imposing the same automatic sporting sanction on a team, that would have participated in a competition when the athlete was not suspended and who was not informed about the positive doping control, due to the athlete is later suspended retroactively. Such a sanction can certainly not be imposed in the absence of an explicit and clear legal basis.

On 15 January 2003 the Disciplinary Tribunal of the International Fencing Federation (FIE) decided to impose on the French fencer L. a 10 month period of ineligiblility, starting on 16 June 2002, and a € 500,- fine, after his A and B samples tested positive for the prohibited substance 19-norandrosterone.

As a consequence of the violation the results of the French fencing team obtained in competitions was annulled with retroactive effect from 16 June 2002.
The French Fencing Federation (FFE) asserted to FIE that the decision to annul the results of the French Fencing was invalid under the FIE Anti-Doping Rules and also under the IOC Anti-Doping Rules. However the FIE decided in January 2003 to uphold the annulment.

Hereafter in February 2003 the FFE appealed the FIE decision with the Court of Arbitration for Sport (CAS). The FFE considered it acceptable that the results were lost of the competitions where the Athlete L. competed but argued that the team should not be disqualified from the competitions were no member of the French team was tested.

The Court of Arbitration for Sport accepts the FFE appeal and concludes that there is no legal basis for the FEI sanction against the French fencing team. Therefore the Panel decides on 19 August 2003 that the disqualification of the results of two competitions must be cancelled.

CAS 2003/A/455 W. v/ UK Athletics

• Athletics
• Doping (testosterone)
• Right to a fair hearing
• Equal treatment
• Sanction in case of multiple doping offences

1. Not every cause justifies the postponement of a hearing, rather the cause must in any event be a "just" cause. A hearing date requires extensive preparation and usually requires a great number of people to be present. The fact that one party says it will not attend the hearing does not in itself constitute just cause. Instead, just cause requires that a party cannot attend for no fault of his own.

2. Whether an offence constitutes a first offence or whether it constitutes a second offence is matter for debate. Common usage of language would suggest that one must look at the chronological sequence of the offences. Pursuant to the Doping Rules and Procedures of UK Athletics, a doping offence is deemed to have been committed when "a prohibited substance is found to be present within an athlete's body tissue or fluids". The decisive factor is therefore the date when the prohibited substance was found in the athlete's body. That is either the date when the A sample was analysed or the date of the taking of the sample. It is not the date of the hearing.

In May 2002 UK Athletics has reported 2 separate anti doping rule violations against the Athlete:
- Athlete’s April 2002 sample showed abnormal proportion of testosterone to epitestosterone (T/E-ratio).
- Athlete’s May 2002 sample tested positive for the prohibited substances 17-epimethandienone.

On October 24, 2002, the IAAF informed UK Athletics that it would not oppose any action to treat the findings of the Athlete’s April sample and May sample as two separate offences.
On 11 February 2003 the Disciplinary Committee found the Athlete guilty of two doping offences and decided an ineligibility to complete in athletics events within the UK and abroad, for life.

In April 2003 the Athlete appealed against UK Athletics Disciplinary Committee's decision of 11 February 2003, regarding his ineligibility for life.

The Court of Arbitration for Sport decided on 21 August 2003:

1.) The appeal filed by Appellant on 16 April 2003 is allowed in part.

2.) The decision by the Disciplinary Committee of UK Athletics dated 11 February 2003, the grounds of which were given on 21 February 2003, is upheld.

3.) The decision by UK Athletics dated 12 February 2003 by which Appellant was declared ineligible to take part in any athletic event within the United Kingdom or abroad for life is varied as follows:
Appellant is declared ineligible to take part in any athletic event within the United Kingdom or abroad until 11 June 2006.

CAS 2003/A/448 International Association of Athletics Federations (IAAF) / Fédération Camerounaise d’Athlétisme (CMR)

• Athletics
• Doping (nandrolone)
• Hearing de novo
• Consumption of wild boar meat
• Exceptional circumstances

1. By virtue of IAAF Rule 21.9, all appeals before the CAS constitute a re-hearing de novo of the issues raised by the case, and that in doping cases before the CAS the IAAF shall have the burden of proving, beyond reasonable doubt, that a doping offence has been committed. However, the only issue raised by the present case concerns the sanction applicable in the circumstances, the athlete having apparently decided not to appeal the decision of the national federation acknowledging the doping offence. In that context, there is simply no need for the IAAF to revisit in its appeal materials the factual and scientific evidence of a doping offence.

2. The unintended consumption of foodstuffs or supplements responsible for the presence of a prohibited substance in an athlete’s body is hardly an unusual occurrence, let alone a "truly exceptional circumstance". It is, rather, one of the very “mischiefs” at which the anti-doping provisions of the IAAF Rules, as indeed the rules of other sports federations, are aimed. Even if the athlete were able to demonstrate that the meat she consumed could, and did, cause the elevated levels of norandrosterone detected in her samples, indeed even if the entirety of the athlete’s evidence were taken as true, the wholly "unexceptional" nature of her explanation would preclude the Panel from making the recommendation to the IAAF Council that the period of ineligibility be reduced.

In May 2002 the Cameroon Athletics Federation (FCA) has reported an anti-doping rule violation against the Athlete (-M) after her A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

The Athlete submitted that her consumption of meat from an uncastrated male wild boar constituted, in the circumstances, a reasonable and plausible explanation for the elevated level of norandrosterone in her urine at the time of the testing in question.

The FCA accepted the Athlete's statement and decided on 15 January 2003 to impose a warning on the Athlete. Hereafter in March 2003 the IAAF appealed the FCA decision with the Court of Arbitration of Sport (CAS).

The CAS Panel unanimously finds that all of the elements of a doping offence are proven and that the IAAF has carried its burden of demonstrating that the athlete committed a doping offence within the meaning of the CAS Code and the IAAF Rules, which impose a two-year minimum suspension.

Given that the athlete competed several times while she knew that she was suspended and that the last date on which she competed was 8 May 2003, her period of ineligibility should run as of that date.

M.’s explanation regarding the cause of her elevated norandrosterone levels does not, in the opinion of the Panel, reveal circumstances of a truly exceptional nature such as to persuade it to recommend to the IAAF Council that the period of ineligibility be reduced in accordance with IAAF Rules.

The Athlete's request that the Panel recommend that the IAAF Council reduce such period of ineligibility is therefore denied, without prejudice to the athlete's right to apply directly to the IAAF Council for such a reduction.

Therefore the Court of Arbitration for Sport decides on 2 October 2003:

1.) The jurisdiction of CAS is affirmed.

2.) The appeal filed by the IAAF on 17 March 2003 is upheld.

3.) The decision issued by the Cameroon Athletics Federation on 15 January 2003 is annulled.

4.) M. shall be declared ineligible for competition for two years commencing on 8 May 2003.

5.) (...)

CAS 2003/A/459 Van Herk v/FINA

On 9 September 2002 the Disciplinary Committee of the Royal Dutch Swimming Federation (KNZB) decided to impose a 4 year period perod of ineligibility on the minor Dutch swimmer (14) Linda van Herk for committing an anti-doping rule violation. 6 months of this sanction was unconditional and 42 months with a probation period of 2 years.

Here the Athlete failed to provide a sample despite several attempts. The Athlete's father requested to stop the sample collection due to business appointments and she left the Doping Control Station while she was warned about the consequences of her refusal.

In September 2002 the Appellant appealed and on 26 October 2002 the KNZB Appeal Committee decided to annul the decision of the KNZB Disciplinary Committee, and to acquit the Athlete.

Thereupon the FINA Disciplinary Committee decided on 11 April 2003 to impose a 2 year period of ineligibility on the Athlete for her refusal to provide a sample.

Hereafter in July 2003 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).

The Panel considered the arguments filed by the Athlete and finds that it has jurisdiction in this case and that the admitted departure by the KNZB from the doping control procedures is certainly regrettble. However the Panel holds that the non-compliance by officials with the procedures does not justifies an acquittal of the Athlete.

Considering the circumstances the Panel concludes that the Athlete intentionally refused to submit to doping control by providing a sample although there are grounds for a reduced sanction.

Therefore the Court of Arbitration for Sport decides on 20 October 2003:

1.) The appeal filed by ihe Appellant on 8 July 2002 is upheld in part and the decision of the FINA Doping Panel varied in part.

2.) The Appellant's suspension is reduced to one-year period to expire on 25 October 2003. The FINA Doping Panel's decision otherwise stands.

3.) The award is pronounced without costs. except for the Court Office fee of CHF 500.-- (five hundred Swiss francs) aheady paid by the Appellant and to be retained by the CAS.

CAS 2003/A/484 Kicker Vencill vs USADA - Interim award

The Court of Arbitration decides on 18 November 2002:

1. The Jurisdiction oif CAS is affirmed;

2. Ibe appeal filed by mr. Vencill on 14 July 2003 is dismissed;

CAS 2003/A/452 IAAF v/MAR and Brahim Boulami

Arbitration CAS 2003/A/452 International Association of Athletics Federations (IAAF) v/ Fédération Royale Marocaine d’Athlétisme (MAR) and B.

• Athletics
• Doping (r-EPO)
• Reliability of the testing method
• Accreditation of the testing laboratory

1. The direct urine test used by the laboratory is a valid and reliable test for the detection of r-EPO in urine (the respondents have failed to cast doubt on the evidence brought forth by the IAAF that 80% is a reasonable cut-off point that largely eliminates the risk of false positives in urinary r-EPO test); this direct urine test has sufficient international acceptance for the purpose of detecting r-EPO in the urine of athletes.

2. The laboratory’s lack of specific accreditation to conduct r-EPO testing is not fatal to the legal validity of its r-EPO tests. However, the lack of specific accreditation shifts the burden to the federation to show that the laboratory conducted its testing in accordance with the scientific community's practices and procedures, and that it satisfied itself as to the validity of the method before using it. Such a burden-shifting rule provides the necessary balance between the needs of IOC laboratories to implement new, reliable testing methods as quickly as possible, on the one hand, and the interests of athletes and the sporting community in ensuring trustworthy test results, on the other.

In August 2002 the Marrocco Athletics Federation (Fédération Royale Marocaine d’Athlétisme, MAR) has reported an anti-doping rule violation against the Athlete Brahim Boulami after his A and B samples tested positive for the prohibited substance Erythropoietin (EPO).

On February 6, 2003, the MAR Disciplinary Commission found the Athlete not guilty of a Doping Offense. The MAR provided the following reasons for the decision to the IAAF in a fax dated February 11, 2003:

i.) The athlete was not notified of his right to be accompanied by a representative when he provided a urine and blood sample on 15 August 2002 in breach of paragraph 2.9 of the IAAF's Procedural Guidelines;

ii.) The "B" sample which was provided on 16 August 2002 was analyzed even though the "A" sample result had never been communicated to the athlete;

iii.) The MAR representative Professor Stambouli was denied the opportunity to attend the analysis of the 15 August "B" sample (numbered B071981 in breach of IAAF Procedural Guidelines;

iv.) No results had been provided concerning the athlete's blood sample;

v.) The r-EPO method of testing has not been recognized scientifically or validated by the international scientific community;

vi.) The Lausanne laboratory does not have specific ISO accreditation to conduct r-EPO testing; and

vii.) The athlete categorically denies administering r-EPO.

Hereafter in April 2003 the IAAF appealed the MAR decision of 6 February 2003 with the Court of Arbitration for Sport (CAS).

The CAS Panel concludes that:

(i) on August 15, 2002, the prohibited substance r-EPO was present in the Athlete's urine,

(ii) the direct urine test used by LAD in this case, described both above and elsewhere, is a valid and reliable test for the detection of r-EPO in urine,

(iii) this direct urine test has sufficient international acceptance for the purpose of detecting r-EPO in the urine of athletes, and

(iv) LAD conducted its testing in accordance with the scientific community's practice and procedures for r-EPO testing, and adequately satisfied itself as to the test’s validity prior to use.

For all these reasons, the Panel finds the Athlete guilty of a Doping Offense under the IAAF Rules. Accordingly, the Panel finds that B. should be declared ineligible for two years, pursuant to IAAF Rule 60.2 (a)(i), with credit for suspension time already served from August 28, 2002, until the date of this Award. B. should therefore be eligible for competition on August 28, 2004.

Therefore 19 November 2003 the Court of Arbitration for Sport:

1.) Grants the appeal filed by the IAAF asking the Court to find B. guilty of a Doping Offense under IAAF Rules, and asking the Court to find that the Athlete should be declared ineligible for two years, less the period of suspension served by the athlete.

2.) Declares that the Athlete shall be declared ineligible for two years from August 28, 2002.

3.) (...).