CAS OG_1996_03 Andrei Korneev vs IOC
CAS OG_1996_04 Zakhar Gouliev vs IOC
Arbitration No 003-4

Andrei Korneev is a Russian Athlete competing in the Men’s Swimming Events at the Atlanta 1996 Olympic Games and Zakar Gouliev is a Russian Athlete competing in the Men’s Greco-Roman Wrestling Events.

In July 1996 the International Olympic Committee (IOC) has reported anti-doping rule violations against the two Russian Athletes after their samples tested positive for the prohibited substance Bromantan. As a result the IOC Executive Board decided on 28 July 1996 to disqualify and to exclude both Athletes from the Olympic Games including withdrawal and return of medals and diplomas.

Hereafter on 29 July 1996 both Russian Athletes appealed the IOC decisions with the Court of Arbitration for Sport Ad hoc Division Atlanta. Here case scientific literature was filed and expert witnesses heard.

In this case the substance Bromantan has apparently been used by Russian athletes for a considerable number of years. It appeared that it was used by athletes competing in the 1988 and 1992 Olympic Games. The use of Bromantan was unknown to the IOC Medical Commission and its use was not detected by the testing methods then available. The Russian Olympic Committee did not inform the Commission of the existence and use of Bromantan and no athlete disclosed its use during drug testing. The Medical Commission became aware of the existence and use of Bromantan in June 1996 and in July 1996 it was proposed to regard Bromantan as a related substance to the forbidden class 1A (Stimulants).

The CAS AD hoc Panel notes that in these cases the IOC Medical Commission acted with the following circumstances:

1. It was at about the beginning of the Olympic Games made aware of the covert use of an unknown substance substantially by Russian athletes over a number of years.
2. The existence of that substance only became known because of the disclosure by one Russian athlete in Canada in March 1996 of its use.
3. The substance was a product for the Russian military and was not available generally although it could apparently "be obtained in Moscow".
4. The scientific literature available relating to this substance was extremely limited and only in Russian.
5. That literature would reasonably lead a scientific reader to the conclusion that the substance possessed stimulant qualities.
6. The appellants did not declare their now undisputed use of the substance when tested for drugs although the use of vitamins was disclosed.
7. The denial of use was persisted in after testing disclosed the presence of the substance in samples which had been tested.

These circumstances would quite naturally and reasonably give rise to a suspicion that the substance possessed the qualities of a stimulant.

The Panel finds that the surrounding circumstances while suspicious do not form a basis for concluding, in the light of the scientific evidence, that Bromantan is a stimulant.
The surrounding circumstances, of themselves, are not evidence of the objective fact of the actual chemical composition and qualities of Bromantan. They could be evidence of the belief of those using the substance but not of the correctness of that belief.
While it may be that further study may establish that Bromantan is a prohibited substance the totality of the materiel before the Panel does not allow it to reach that conclusion.

Further in this case the Russian Olympic Committee offered to:

1. Cooperate fully in a study to determine whether Bromantan should be classed as a prohibited substance.
2. To make records relating to Bromantan available for that purpose.
3. To disclose to the Medical Commission all drugs which the Russian Olympic Committee recommend to Russian athletes for use on a general basis. The Russian Olympic Committee urged that consideration should be given to creating a rule that other national bodies should be required to make similar disclosures.
4. To discontinue the use of Bromantan pending further investigations.

The CAS Panel strongly urge the Russian National Olympic Committee to implement its offers. In particular the Panel believes that, in view of the probability that Bromantan can be indeed classified as a stimulant, its use should be discontinued forthwith.

The Court of Arbitration for Sport Ad hoc Division Atlanta Panel decides on 4 August 1996 that the appeals of the Athletes Andrei Korneev and Zakhar Gouliev are allowed and to set aside the IOC decisions of 28 July 1996.

CAS 96/149 A.C. / Fédération Internationale de Natation Amateur (FINA)

TAS 96/149 Cullwick v/ FINA

• Doping of a waterpolo player (salbutamol)
• Special status of salbutamol in the FINA rules
• Omission to declare the use of such substance to the testing agent Good faith of the athlete

1. On the basis of the FINA Rules and Guidelines, the omission to declare the use of salbutamol prior to the doping control constitutes an offence equivalent to a technical breach only.

2. The doctrine of lex mitior, i.e. that which permits a criminal court to apply current sanctions to the case before it, if such sanctions are less severe that those which existed at the time of the offence, is applicable to disciplinary matters such as doping cases.

On 1 December 1995 the International Swimming Federation (FINA) Executive decided to impose a sanction of 2 years on the New Zealand waterpolo player Antony Cullwick after he tested positive for the prohibited substance Salbutamol related to his prescribed Asthma medication.

Hereafter the Athlete appealed the FINA Decision with the Court of Arbitration for Sport (CAS).

The Athlete asserted that he had used Salbutamol as prescribed medication for his Asthma. He argued that and under the rules or regulations Salbutamol by inhalation is a permitted and not a banned substance and therefore no doping offence was committed.

FINA contended that under the rules and guidelines in order to constitute Salbutamol a permitted as distinct from a banned substance not only had it to be taken by inhalation, but also there must be prior notification to a relevant authority, either a national federation or FINA itself.

In view of the evidence the Panel determines that the Athlete's violation was a technical breach and not an intentional violation because of the prescribed medication he used for his Asthma. However the Athlete, his doctor, or other appropriate agent, failed to inform his national federation, or FINA or other relevant body about his use of the Ventolin inhaler for medical purposes.

The Panel deems that the fault in this matter appears to lie with the NZL swimming federation in their obligation to take every step to ensure that competitors under their jurisdiction were familiar with all rules, regulations, guidelines and requirements in sucht a sensistive area as doping control.

In addition the Panel made recommendations to FINA to make clear and more precise the relevant rules so that athletes could understand them more easily and disputes over the meaning, if possible, avoided.

Therefore the Court of Arbitration for Sport decides on 13 March 1997:

1.) The appeal lodged by A.C. is partially upheld.

2.) The sanction pronounced against the Appellant is cancelled.

3.) (...)

TAS 96/156 Jessica K. Foschi vs FINA

Facts
Jessica Foschi, appellant, appeals against the decision of the executive committee The FINA, respondent, dated June 21, 1996. The Appellant had provided samples for doping control purposes on August 4, 1995, in a post event doping control. The samples (A and B) showed the presence a metabolite of the prohibited substance mesterolone.

History
Appellant, her parents and her coach consistently denied having knowingly taken or given the prohibited substance. They even underwent a polygraph examination. The father of the appellant hired a private investigator to find out if an intentional act by another person (sabotage) could explain the positive test. No conclusive results were produced.
On October 30, 1995, appellant appeared before the USS's (United States Swimming) National Board of Review and they imposed a sanction of two year probation from the date of decision November 2, 1995. Appellant appealed against this decision but the majority of the USS Board found that Appellant didn't rebut the presumption of doping. It imposed a two year suspension on Appellant starting August 4, 1995.
Appellant invoked her right to make a final appeal to the American Arbitration Association (AAA). The hearing was held on February 29 and March 1, 1996. This panel reinstates the appellant because the imposed sanctions violated fundamental fairness and were arbitrary and capricious.
The FINA executive held a hearing on June 20, 1996, in Lausanne (Switzerland). The FINA executive decision, dated June 21, 1996, was a two years suspension in accordance with the FINA rules beginning on August 4, 1995.
Appellant appeals against the decision of the FINA executive but in a meeting, without notice to or the presence of the appellant, they unanimously rejected the appeal.
On September 3, 1996, appellant filed a declaration of appeal against the decision of the FINA Bureau with the CAS in Lausanne, which was granted.

Submissions appellant:
- The samples were never retested.
- There were irregularities in the urine collection process.
- There had been inadequate security at the meet on August 4, 1995, enabling a third party to add something containing mesterolone to her food or drink without her knowledge.
- Appellant made the suggestion that the consumption of chicken meat could have caused the positive test.
- The FINA Executive violated it's obligation to provide appellant a fair hearing.
- The appeal proceedings before the FINA Bureau did not comfort with any concept of any due process, fundamental fairness or natural justice.
- The decision issued by the FINA Executive did not comfort with any concept of any due process, fundamental fairness or natural justice.
- Her performance was not enhanced which should require dismissal of her case.
- The refusal to permit an independent laboratory to test the samples violated the right to a fair hearing. By this the Appellant can't question the findings and suggest a cover up for a laboratory mistake (the test of the B-sample was aborted and re-run).

submissions respondent:
- The doping test performed was correct and proper.
- There is no evidence that the results of her test have been wrong or tampered with by the UCLA laboratory.
- The burden of establishing how the prohibited substance had entered the body rests entirely on the athlete.
- The strict liability principle is not put in question.
- The specific substance mesterolone doesn't allow a reduction of the sentence.
- Polygraph test are not accepted as evidence.

Submissions Panel:
The panel concludes that the performed test procedures were correct however there can be a flexibility in the sanction within the FINA rules. The suggestion that the positive result came from eating chicken is pure speculation.
The consumption of mesterolone knowingly at a time when appellant knew that it was likely to be tested and at a time when the substance would not enhance performance considers a lesser degree of guilt.

Conduct of the parties:
- Appellant has shown herself to be co-operative and has taken nearly and perhaps even every, conceivable step possible in order to try and prove that she is without fault.
- Respondent's conduct has lacked correctness in various ways.

Decision
- The decision of the FINA Executive Office of June 21, 1996, confirmed by the FINA Bureau on August 3, 1996 is reversed.
- The appellant is found to have committed an offence and is suspended for a period of six months from August 4, 1195 to February 3, 1996.
- The respondent has to pay the appellant as contribution towards her expenses 15,000 Swiss Francs.

TAS 98/189 Michael Dionne and US Bobsled & Skeleton Federation (USBSF) vs. Fédération Internationale de Bobsleigh et de Tobogganing (FIBT)

Facts
Michael Dionne, appellant and the United States Bobsled and Skeleton Federation (USBSF) appeal against the decision of the executive committee of the International Bobsleigh and Tobogganing Federation (FIBT). Appellant had been sanctioned with a period of ineligibility of three months for being positive tested for the prohibited substance ephedrine (A and B sample). The reason was the use of products against a cold which contained the prohibited substance. Appellant appealed because he believes the sanction was too harshly and he wanted to have the opportunity to take part in the Olympic Games of Nagano.

History
The representative of the appellant took the position that the three month suspension would violate:
- the International Olympic Committee (IOC) Medical code,
- the FIBT's own rules, and
- principles of fairness and proportionality reflected in previous decisions of the CAS.
The FIBT maintains that the appeal must fail because appellant didn't exhausted internal remedies within the FIBT rules. However the arbitrator remarks that it may be useful for the FIBT to reexamine and clarify its own procedure for appeals.
The arbitrator considers the penalty put upon the appellant and concludes that it was the lowest possible.
I was taken in consideration that the appellant wasn't cheating but careless towards the use of supplements.

Decision
1. The FIBT decision regarding appellant is upheld.
2. In the circumstances, the sanction thus confirmed is not considered to affect the status of appellant as an accredited member of the U.S. Olympic Team.
3. The application has not occasioned significant costs. There is no award in that regard.
4. This award shall immediately be made public.

CAS ad hoc Division (O.G. Nagano) 98/002 R. / International Olympic Committee (IOC)
CAS 1998 NAG 2 Ross Rebagliati vs International Olympic Committee (IOC)

Disqualification of an athlete for use of marijuana
Lack of legal basis to sanction the athlete

1. The sole basis to sanction the use of marijuana at the Olympic Games is Chapter II, article III, paragraph B of the IOC Medical Code, which treats the use of marijuana as doping only if there is an agreement between the IOC and the relevant international federation to that effect. Absence of any such agreement in this case.

2. The CAS recognizes that from an ethical and medical perspective, cannabinoids consumption is a matter of serious social concern. The CAS is not, however, a criminal court and can neither promulgate nor apply penal laws. The CAS must decide within the context of the law of sports, and cannot invent prohibitions or sanctions where none appear.

In February 1998 the Athlete Ross Rebagliati competed in the Canadian Men’s snowboard giant slalom during the Nagano 1998 Olympic Winter Games where he won the Olympic gold medal.

On 11 February 1998 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after his sample tested positive for the substance marijuana (cannabis).
Therefore the IOC Executive Board decided to rescind the Olympic gold medal due to the positive doping test.

Hereafter the Athlete appeals the IOC Executive Board decision with the ad hoc Division of the Court of Arbitration for Sport (CAS) present at the Nagano 1998 Olympic Winter Games.
The Athlete stated he did not use cannabis since April 1997 and argued that the positive test was the result of second hand cannabis smoke due to he attended two parties in January 1998 where people smoked cannabis.
The CAS Panel concludes that the sanction against the Athlete lack requisite legal foundation, due to marijuana (cannabis) wasn't actually on the IOC banned-substance list.

The ad hoc Division of the Court of Arbitration for Sport Panel decides:

1.) The IOC Executive Board's decision of 11 February 1998 is reversed.
2.) No costs are awarded.
3.) The decision shall be subject to immediate publication.

Cannabis has since been listed by the World Anti-Doping Agency (WADA) as a banned substance.

TAS 97/175 Union Cycliste Internationale (UCI) / A.

• Cycling
• Doping (Bromantan and Clenbuterol)
• Authority UCI to agitate
• CAS competence
• Right to be heard
• Legal Status of the Prohibited List of substances

In July 1997 the International Cycling Union (UCI) has reported several anti-doping rule violations against the Uzbek Athlete A. after his samples tested positive for the prohibited substances bromantan and clenbuterol. The Athlete A. had provided these samples at 5 cycling competitions in France in 1997 and at one stage of the 1997 Tour de France.

On 28 August 1997 the Uzbekistan Cycling Federation decided to impose on the Athlete a 6 month period of ineligibility and a Sfr. 4000 fine. Hereafter in September 1997 the UCI appealed the Uzbek decision with the Court of Arbitration for Sport (CAS).

The UCI requested the CAS Panel to set aside the Uzbek decision and to impose a 1 year period of ineligibility including a Sfr. 4000 fine and disqualification of his results and points. Consequently, even if the UCI does not necessarily intervene in disciplinary proceedings, the UCI must be considered as a party, according of Article R47 CAS Code.

The Panel makes the following observations in this case:

1.) Even if the UCI doest not participate systematically in the proceedings provided in its Rule, the UCI nevertheless remains the initiator of the prosecution of the Athlete guilty of an anti-doping violation and therefore invites the National Federation to open proceedings. Consequently, even if it does not necessarily intervene in disciplinary proceedings, the UCI must be considered as a party, within the meaning of Article R47 of the Code.

2.) When an Athlete signs for his licence he is expressly bound to submit to CAS, as authority in the final instance, his arguments in anti-doping cases.

3.) The party considering itself a victim of a violation of its right to be heard or of any other procedural fault must invoke this at once in the arbitral proceedings. Failing to do this, the party is no longer entitled to complain in the appeal against the sentence.

4.) It is not because a particular product isn’t mentioned in the UCI list of prohibited substances at the moment of the facts that it possibly can not be qualified as a doping product.

Therefore on 5 April 1998 the Court of Arbitration for Sport decides to uphold the UCI appeal, to reform the Uzbek decision of 28 August 1997 and to impose a 1 year period of ineligibility and a CHF 4000 fine on the Athlete including disqualifation of his results and poinst.

CAS 98/192 Union Cycliste Internationale (UCI) / S., Danmarks Cykle Union (DCU) and Danmarks Idraets-Forbund (DIF)

• Cycling
• Doping (testosterone)
• Conflict between the rules of an International Federation and those of a National Olympic Committee

1. Rule 30 of the Olympic Charter assigns the international federations the responsibility to “establish and enforce, in accordance with the Olympic spirit, the rules concerning the practice of their respective sports and to ensure their application”. The mission of the NOC's, on the other hand, is to “fight against the use of substances and procedures prohibited by the IOC or the IFs”. This mission is focused upon political actions vis-à-vis the competent authorities of their respective countries.

2. The international federations enjoy the principal competence with regard to the fight against doping. The natural consequence of this is that their rules prevail over those which an NOC or national sports authority (for example an NF) might have enacted.

3. Pursuant to the UCI regulations, in case of endogenous steroids, a sample is deemed positive if the urine T/E ratio is above 6, unless this ratio is attributable to a physiological or pathological condition.

In August 1997 the Danish national cycling federation (DCU) - initiated by the International Cycling Union (UCI) - has reported an anti-doping rule violation against the Athlete S. after his A and B samples tested positive for the prohibited substance testosterone with a T/E ratio above the WADA threshold.

On 18 January 1998 the Doping Tribunal of the Danish NOC decided to impose a 2 year period of ineligibility on the Athlete under the Danish Rules starting on 13 December 1997.
The Athlete appealed this decision and on 4 May 1998. The Danish Commission for Appeals and Arbitration of the Danish NOC decided to uphold the imposed 2 year sanction.

After deliberations between the UCI. the DCU and the Danish NOC about the imposed sanction and respecting the UCI Rules the UCI filed an appeal in February 1998 with the Court of Arbitration for Sport (CAS).

Pending the appeal of the Athlete S. with the Danish Commission for Appeals and Arbitration the UCI’s appeal with CAS was postponed and resumed after the Danish Commission for Appeals and Arbitration issued its decision on 4 May 1998.

The UCI argued that the imposed sanction of 2 years under the Danish Rules on the Athlete exceeds the maximum sanction prescribed in the UCI Rules and it requested the CAS Panel to impose an appropriate sanction under the UCI Rules. Also UCI disputed the fact that no disqualification from the Tour of Denmark or a fine was imposed on the Athlete.

The Panel concludes that the jurisdiction of the CAS is based on Art. 84 UCI. The Doping Tribunal of the Danish NOC acted as the “competent body” of the DCU with the knowledge and consent of the UCI. The DCU, in turn, exercised the original jurisdiction of the UCI as prescribed by the applicable provisions of the UCI Rules.

The UCI initiated the doping proceedings against the Athlete S. in accordance with UCI Rules, informed the DCU regarding applicable deadlines and requested to be kept informed of all measures taken by the DCU in the proceedings. Its good faith reliance upon the DCU's representations is evidenced in the exchange of information between the UCI and the DCU, on the one hand, and the DCU/Danish NOC and the Athlete S., on the other.

It is shown clearly in the UCI's timely filing of its appeal to the CAS in accordance with Art. 84 and its refusal to accept the jurisdiction of the Danish NOC with regard to the appeal by the Athlete S. to the Commission of Appeals of the Danish NOC.

The Panel dismissed the arguments filed by the Athlete and reduced the imposed sanction from 2 years to 9 months. The Panel has taken into consideration the fact that the UCI Rules prescribes a maximum suspension of one year for the first offence as opposed to the maximum suspension of two years prescribed in the Rules applied by the Danish NOC.

It cannot be overlooked, however, that the reduction in the sentence is also justified by the disadvantages suffered by the Athlete S. in formulating his defence as a result of the jurisdictional dissent between the UCI, the DCU and the Danish NOC.

Therefore on 21 October 1998 the Court of Arbitration for Sport decides:

1.) The 19 January 1998 Decision of the Doping Tribunal of the National Olympic Committee and Sports Confederation of Denmark (Danmarks Idreaets-Forbund) as modified by the Decision of the Commission of Appeals and Arbitration of 4 May 1998 shall be modified as follows:

(a) The term of the sentence shall be reduced from two years to nine months commencing on 12 December 1997. Accordingly, the term of suspension ends 11 August 1998.

(b) The Court of Arbitration for Sport imposes a fine on the Athlete S. in the amount of CHF 2’000.00 (two thousand Swiss Francs).

(...)

TAS 98/203 Union Cycliste Internationale (UCI) / F. & Federazione Ciclistica Italiana (FCI)

• Cycling
• Doping (testosterone and metenolone)
• Double infringement

1.) When an athlete tested positive for the same substance or method several times in a short period of time and it is decided that these positive test results are caused by one anti-doping violation, these cases will be joined into one imposed sanction and into one imposed fine. On the other hand, when the athlete tested positive for two different substances and that these positive tests are the result from different doping acts, there is a double infringement. In both cases disqualification will be applied on all competition events where the athlete tested positive.

2.) The CAS summary proceedings is a guarantee of double degree of jurisdiction. Therefore, and provided that there is a domestic legal remedy in de legislation of the country in question, the UCI considers that CAS is the only court of appeal.

In August 1997 the International Cycling Union (UCI) reported an anti-doping rule violation against the Italian Athlete F. after his 2 samples provided at the Tour of Switzerland in June 1997 tested positive for the prohibited substances metenolone and testosterone with a T/E ratio above the threshold.

Also in October 1997 the UCI reported a second anti-doping rule violation against the Athlete after his sample provided at the Tour of Poland in September 1997 tested positive for methyltestosterone.

On 12 January 1998 the Italian Cycling Federation, Federazione Ciclistica Italiana (FCI), decided to impose a 6 month period of ineligibility and a CHF 2.000,- fine on the Athlete including 50 points loss.

On 8 April 1998 the FCI decided for the Athlete’s second violation to impose an additional 1 year period of ineligibility and a CHF 4.000,- fine including including 75 points loss. Here the Athlete admitted that he had used doping during the Tour of Switzerland but denied the use of doping during the Tour of Poland.

The Athlete appealed the FCI decision of 8 April 1998 and on 16 May 1998 the FCI Appeal Commission concluded that no double infringement occurred and decided to set aside the challenged sanctions and to impose on the Athlete a 8 month period of ineligibility and a CHF 3.500,- fine including 70 points loss.

Hereafter the UCI appealed the FCI Appeal Commission decision of 16 May 1998 with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the decision of the FCI decision and to uphold the FCI decisions of 12 January and 8 April 1998.

Considering the evidence and statements in this case the Panel concludes that the Athlete has committed two anti-doping violations for the use of the substances testosterone and metenolone during the 1997 Tour of Switzerland and for methyltestosterone during the 1997 Tour of Poland.

Therefore the Court of Arbitration for Sport decides on 20 November 1998:

• To set aside the decision of the FCI Appeal Commission of 16 May 1998;
• To uphold the FCI decision of 12 January 1998 (1997 Tour of Switzersland);
• To disqualify the Athlete’s results obtained at the 1997 Tour of Poland;
• To impose a 1 year period of ineligibility, including 5 months as suspended sanction, for the Athlete’s second violation (1997 Tour of Poland); and
• CHF 4.000,- fine.