CAS A3/1999 & CAS A4/1999 Australian Olympic Committee & Australian Handball Federation vs A.

CAS (Oceania registry) A3, A4 / 99; Australian Olympic Committee (AOC) and Australian Handball Federation (AHF)/ A.,

Handball
Doping (salbutamol)
Extenuating circumstances

1. Any form of medication should be first considered and authorised by a medical practitioner who is familiar with the anti-doping regulations of both the AOC and the particular sport. An elite athlete should be aware of possible risks and must normally bear some responsibility for such an enquiry.

2. In the present case, given the age of the athlete, his history of medical need for a medication containing salbutamol, his prior written advice that he was taking this medication to the State Body of the AHF and the fact that responsible officials within the AHF had assisted him with this medication in the past, the athlete has committed a technical breach of the anti-doping policies but bears no moral responsibility for the breaches and that he was not in any way culpably involved in the breaches.

In October 1998 the Australian Athlete tested positive for the prohibited substance salbutamol which he used as prescribed medication Ventolin for his asthma.

The alleged breach of the Australian Handball Federation (AHF) anti-doping policy occurred on the day following the adoption by the AHF of its anti-doping policy. On Sunday 11 October 1998 The Athlete A. was participating in an event in Victoria. Even though it was the day after the AHF had adopted its anti-doping policy and the anti-doping control officer was present, neither the officer nor any other team official told the Athlete A. or any other member of the team or participant that the AHF had adopted an anti-doping policy.

Considering the circumstances the sole arbitrator is satisfied that extenuating circumstances do exist within the meaning of both anti-doping policies and that no sanction should be imposed on the Athlete A. The evidence establish that A. did not know or suspect that the relevant substance was prohibited and had no reasonable grounds to know or suspect that the substance was prohibited.

The Court of Arbitration for Sport decides on 2 August 1999 that:

1.) On 11 October 1998, the Respondent A. committed a breach of the AOC Anti-Doping Policy and the AHF Anti-Doping Policy in that there was present in his body tissues or fluids substances belonging to classes of pharmacological agents which were prohibited, namely the substance Salbutamol which was present as a result of his inhalation of an anti-asthmatic medication Ventolin.
2.) On the balance of probabilities extenuating circumstances do exist and that as a result of those extenuating circumstances there should be no sanction imposed on A.

CAS 98/222 B. / International Triathlon Union (ITU)

• Triathlon
• Doping (nandrolone)
• Threshold for endogenous substances
• Strict liability
• In dubio pro reo

1. Low concentrations of nandrolone metabolites no longer permit a reliable conclusion as to the ingestion of nandrolone. In other words, it appears to be beyond scientific doubt that such low concentrations falling within what is often referred to as the “grey zone” (i.e., concentrations between 2,0 and 5,0 ng/ml), can as well be the result of endogenous production of the human body. When the concentration of nandrolone falls within the “grey zone”, the likelihood that nandrolone is produced endogenously, is decreasing exponentially within the limits of the “grey zone”.

2. The rule on strict liability is essential and indispensable for an efficient fight against doping in sport and for the protection of fairness towards all competitors and of their health and well-being. The principle of strict liability rule does not exempt the sports federations to prove the existence of a doping offence. The effect of any rule of law imposing strict liability is merely to render obsolete the proof of guilt on the part of the person subjected to the regime of strict liability, while on the other hand such rule does not eliminate the need to establish the wrongful act itself and the causal link between the wrongful act and its consequences.

3. The legal impact of a “grey zone” should be reflected in a rule that, in such cases, the sanctioning body can no longer rely on legal presumption that the presence of a prohibited substance is a consequence of external application, but should provide additional evidence supporting this presumption, or, at least, excluding all other causes.

In June 1998 the Swiss Triathlon Federation (STF) has reported an anti-doping rule violation against the Athlete B. after his A and B samples tested positive for the prohibited substance 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

Consequently on 10 December 1998 the STF Doping Commission decided to impose a 1 year period of ineligibility on the Athlete.

Hereafter in December 1998 the Athlete appealed the STF Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel te set aside the Appealed Decision and to annul the imposed sanction.

In this case the Panel determines that this is a typical example of multiple and possibly parallel causes leading to the presence of the forbidden substance. The Panel considers that it would be unrealistic to require from the Athlete to establish that the presence of metabolites was not and could not have been the external application of Nandrolone: even if alleged by the athlete, it could hardly be supported by convincing evidence.

The Panel concludes that the Athlete has established at least a probability that the concentrations of Nandrolone metabolites found in his urine were a result of endogenous production of his body. Although it is clear that the Athlete was unable to prove with certainty such endogenous production, the evidence provided can be deemed sufficient to create reasonable doubt concerning external application.

Therefore the Court of Arbitration for Sport decides on 9 August 1999:

1.) The appeal lodged by B. is upheld.

2.) The decision of the ITU Hearings and Appeals Board of 10 December 1998 is hereby cancelled.

3.) The suspension of the Appellant for a one-year period (from 1 September 1998 until 31 August 1999), pronounced by the Swiss Triathlon Federation on 29 August 1998 is lifted.

4.) The disqualification of the Appellant from all competitions between 7 June 1998 and 31 August 1998, pronounced by the Swiss Triathlon Federation on 29 August 1998 is cancelled; the results and titles achieved by the Appellant during this period are confirmed.

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

6.) The Respondent shall reimburse to the Appellant the half of the Court Office fee in the amount of CHF 250.--; moreover, each party shall bear its own costs.

CAS 99/A/223 International Tennis Federation (ITF) / K.

• Tennis
• Doping (nandrolone)
• Collection procedure
• Exceptional circumstances

1. Pursuant to the ITF Anti-doping Programme, any deviation or deviations from the anti-doping control procedures, including, but not limited to, sample collection, chain-of-custody or laboratory analysis, do not invalidate any finding, procedure or positive test result, unless that deviation or deviations raises a material doubt as to the reliability of the finding, procedure, decision or positive test result.

2. It is for the ITF to establish with appropriately convincing evidence the existence of a doping offence, including compliance with anti-doping control procedures. A player who seeks to rely upon 'Exceptional Circumstances' to mitigate penalty must do so on the balance of probabilities. Exceptional circumstances are defined to mean that circumstances occurred in which the player had no knowledge that he had taken or been administered the prohibited substance found in his body.

In March 1999 the ITF filed an Appeal with the Court of Arbitration for Sport (CAS) against the light sanction imposed on K. after his A and B samples tested positive for 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

The Court of Arbitration for Sport decides on 21 August 1999:

1.) The appeal by the ITF is upheld.
2.) The decision of the Appeals Committee of the ITF of 22 December 1998 shall be modified as follows:
K. is suspended for a period of 12 months from 1 September 1999 to 31 August 2000.
(...)

CAS (Oceania registry) A 2/99 Australian Olympic Committee (AOC) and Amateur Boxing Union of Australia Inc (ABUA) / E.

Boxing
Doping (terbutaline)
Obligation to declare the use of such substance
Good faith of the athlete

1. Terbutaline is a bronchodilator and, according to the IOC list of prohibited substances, is permitted by inhaler only when its use is previously certified in writing by a respiratory or team physician to the relevant medical authority. It is clear that there cannot be more than one relevant medical authority. Further, the athlete must know, or be able readily to ascertain, to whom the giving of such certification will operate so as to take Terbutaline off the prohibited substance list. It cannot be left to the AOC in an action against an athlete and, a fortiori, after the event, to say who it might in its discretion have treated as satisfying the description.

2. If one requires of athletes that they maintain enquiries, it is surely the correlative duty of all those sporting bodies involved in the important fight against drugs in sport to likewise keep up to date and to ensure the steady dissemination to athletes and their coaches - not just of information - but of information which is unambiguously correct. There is a common cause against drugs in sport and actions directed towards that end are necessarily well intentioned. However, little can be achieved in a fog of uncertainty. If sporting bodies do not provide the right information, then it is quite unfair that athletes alone should bear the significant consequences.

In November 1998 the Australian Athlete E. tested positive for the prohibited substance terbutaline which he used as prescribed medication Bricanyl for his asthma.

The Athlete believed that notification on the drug testing form of asthma medication being taken would suffice. This view was consistent with the view of the ABUA communicated in October 1998 to its State Officials. It was not disputed that the Athlete did not know that Terbutaline was a prohibited substance. The sole question for the CAS Panel is whether the Athlete has established, on the balance of probabilities, that not only did he not suspect that it was a prohibited substance, but that he had, as on 1 November 1998, no reasonable grounds to know or suspect that Terbutaline was a prohibited substance.

The Sole Arbitrator finds that the Athlete has established on the balance of probabilities that “extenuating circumstances” as defined exist. In particular the evidence did not establish that, prior to November 1998, Terbutaline was listed as a component of Bricanyl either on the packaging or in an accompanying leaflet.
If sporting bodies do not provide the right information, then it seems to the arbitrator to be quite unfair that Athletes alone should bear the significant consequences.

Therefore the Court of Arbitration for Sport decides on 2 September 1999 that:

1.) A warning is imposed on the Respondent E.
2.) The Award should be made public.

CAS 1999/A/230 B. vs Fédération Internationale de Judo
TAS 99/A/230 B. / Fédération Internationale de Judo (FIJ)

Related case:

CAS 1998_214 B. vs International Judo Federation
March 17, 1999

• Judo
• Doping (nandrolone)
• Absence of legal basis to sanction the athlete

1. Neither the IJF Anti-Doping Rules nor the IOC Medical Code provide for the disqualification in the case of an out-of-competition positive test result. In casu, the results of the appellant can’t be invalidated, from the moment he has obtained his title and medal, certainly after the positive out of competition control, but before the notification of the decision informing him of his suspension.

2. According to its jurisprudence, CAS can not invent sanctions, when these don’t exist. Where regulatory instruments define penalties and their conditions of application to specific facts, the principle of strict interpretation must be respected in all its rigor by sports bodies and by CAS. In casu, neither the IJF Anti-Doping Rules nor the IOC Medical Code provide for disqualification in the matter of an out-of-competition positive test result.

On 17 March 1999 the Court of Arbitration for Sport decided to impose a 15 month period of ineligibility on the French Athlete (TAS 98/214) after his A and B samples tested positive for the prohibitied substances 19-norandrosterone, 19-noretiocholanolone (Nandrolone).

As a consequence of the CAS decision of 17 March 1999 the International Judo Federation (IJF) decided in April 1999 to disqualify the Athlete’s results obtained at the World Championships in October 1997 including withdrawal of his medal. This decision was notified to the Athlete on 8 June 1999.

Hereafter in June 1999 the Athlete appealed the IJF decision of 8 June 1999 with the Court of Arbitation for Sport (CAS).

The CAS Panel finds that the imposed sanction on the Athlete started on the date of the notification of the anti-doping violation on 22 October 1997 and not on the date of his participation to the World Championships from 8 to 11 October 1997.

herefore the IJF was not authorized to invalidate the Athlete’s results obtained at this event and also neither the IJF Anti-Doping Rules nor the IOC Medical Code provide for disqualification in the matter of an out-of-competition positive test result.

Therefore on 20 December the Court of Arbitration for Sport decides to allow the Athlete’s appeal and to cancel the IJF decision for the Athlete’s to annul his results and medal won at the 1997 World Championships.

• CAS 1999/A/234 David Meca-Medina vs FINA
• CAS 1999/A/235 Igor Majcen vs FINA
• TAS 1999/A/234 David Meca-Medina v/ FINA
• TAS 1990/A/235 Igor Majcen v/ FINA

Related case:
CAS 2000/A/270 David Meca-Medina & Igor Majcen vs FINA
May 1, 2001

On 8 August 1999 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Spanish swimmer David Meca-Medina and the Slovenian swimmer Igor Majcen after their A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

Hereafter in August 1999 both Athletes appealed the FINA decision with the Court of Arbitration for Sport (CAS).

The Athletes argued that there were departures of the standards for testing and laboratories; the substance in question was not prohibited; the positive tests were caused by the ingestion of pork offal; and the imposed sanction was too severe.

The Panel rejects the arguments that it was not their urine which was analysed and finds that the duration of the transport to the laborary had no effect on the validity of the test. The Panel holds that the chain of custody including the documentation was complete and satisfactory.

Further the Panel finds that the Athletes failed to establish that any alleged departure from the procedure could lead to genuine doubt on the reliability of any finding. They also failed to demonstrate that the positive tests was the result of the ingestion of meat injected with Nandrolone.

The Panel establishes that the substances in question were prohibited as part of the “related substances” before they were expressly included in the newer lists of anabolic androgenic steroids.

The Court of Arbitration for Sport decides on 29 February 2000 with respect to David Meca-Medina:

1.) The appeal is rejected as far as it is filed on behalf of David Meca-Medina.
2.) The suspension of David Meca-Medina is confirmed for a duration of 4 years from August 20, 1999 under deduction of 77 days of provisional suspension (May 14, 1999 to July 30, 1999).
3.) All results achieved by David Meca-Medina between January 31, 1999 and August 19, 1999 shall be cancelled.
4.) The award is pronounced without costs, except for the Court Office fee of CHF 500,- which shall be kept by the CAS (art. R65.2 of the Code)
5.) David Meca-Medina is ordered to pay an amount of CHF 4’000,- (together with interest at 5% from the date of the decision) to Respondent FINA as a contribution towards its legal fees and expenses (art. R65.3 of the Code).

The Court of Arbitration for Sport decides on 29 February 2000 with respect to Igor Majcen:

1.) The appeal is rejected as far as it is filed on behalf of Igor Majcen.
2.) The suspension of Igor Majcen is confirmed for a duration of 4 years from August 20, 1999 under deduction of 77 days of provisional suspension (May 14, 1999 to July 30, 1999).
3.) All results achieved by David Meca-Medina between January 31, 1999 and August 19, 1999 shall be cancelled.
4.) The award is pronounced without costs, except for the Court Office fee of CHF 500,- which shall be kept by the CAS (art. R65.2 of the Code)
5.) Igor Majcen is ordered to pay an amount of CHF 4’000,- (together with interest at 5% from the date of the decision) to Respondent FINA as a contribution towards its legal fees and expenses (art. R65.3 of the Code).

CAS 2000/A/274 S. / Fédération Internationale de Natation (FINA), order of 26 May 2000

Related case:
CAS 2000_A_274 S. vs FINA
October 19, 2000

Conditions for granting a stay of a decision

On 25 March 2000 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Italian Athlete S. after her A and B samples tested positive for the prohibited substance testosterone with a T/E ratio above the threshold.

In May 2000 the Athlete S. appealed the FINA decision with the Court of Arbitration for Sport (CAS).
The Athlete requested the CAS Panel in this proceedings for the stay of the execution of the FINA decision in order to compete at the European Swimming Championships (in Helsinki between 29 June and 6 July 2000) and to be able to qualify for the Sydney 2000 Olympic Games.

In this Preliminary Award the CAS Panel finds that a doping offence has been established and that the FINA decision of 25 March 2000 is not contrary to the FINA Doping Control Rules.

Therefore the CAS Appeals Arbitration Division decides on 26 May 2000:

1.) Dismiss the application for provisional measures filed by S. on 4 May 2000.
2.) States that the present order is pronounced without costs.

CAS 2000/A/262 R. / International Basketball Federation (FIBA), preliminary award of 28 July 2000

Related cases:

• Swiss Federal Court 4P_230_2000 Stanley Roberts vs FIBA
  February 7, 2001
• DIS U (K) 1651_02 Stanley Roberts vs District Court Munich
  October 10, 2002
  
  

• Basketball
• Doping (amphetamines)
• CAS jurisdiction
• Arbitration clause referring to CAS

1. Swiss Law requires for an arbitration agreement to be valid, that it is made in writing. The written form has as a purpose firstly to warn the parties about the existence of an arbitration clause and secondly to serve as evidence. When reference is made to an external document, and particularly when this reference is of a global nature only (not specifically mentioning the arbitration clause) the question as to whether the
requirements of form are met, must be decided upon the principle of trust.

2. A global reference is not sufficient, when the party proposing an arbitration clause in this way knew or should have known by experience, that the other party did not want to agree to such a clause or if such a clause was unusual under the given circumstances. A global reference on the other hand is valid and sufficient between two parties, who are experienced in the field or when an arbitration clause is customary in the particular
sector of business, regardless of whether the other party has indeed read the document of reference and therefore knew, that it contained such a clause. The Swiss Federal Court has applied and confirmed this principle of trust also to sports related disputes.

3. A professional basketball player can be considered experienced in the field of professional sports. Arbitration clauses have become customary in most international sports federations and many By-Laws or procedural regulations of these organisations refer to CAS arbitration with the explicit exclusion of the right to appeal to ordinary courts. Arbitration is also a widely applied way of dispute settlement in the sport in the
US. An arbitration clause such as the one contained in the FIBA Rules can therefore not be considered as unusual.

On 24 November 1999 the U.S. National Basketball Association (NBA) imposed a 2 year period of ineligibility on the Athlete after he tested positive for a prohibited substance Amphetamine .
Based on the NBA decision, FIBA also sanctioned the Athlete with a 2 year period of ineligibiltiy for FIBA competitions. As a consequence the Athlete’s contract to join the Turkish basketball team Efes Pilsen was cancelled.

The FIBA sanctioned the Athlete under a new set of rules in order to prevent basketball players go overseas without restrictions to resume their career after being expelled from the NBA. The Athlete claimed the FIBA decision damaged his career.

Between 2009 until 2003, the Athlete filed without success severals lawsuits before courts in the USA, Germany and Switzerland against the FIBA seeking cancellation of the sanction and damages of just under $1 million.

• The FIBA Appeal Commission dismissed the Athlete's appeal on 4 February 2000.
• On 31 August 2000 (CAS 2000/A/262) the CAS Panel ruled it has jurisdiction about the imposed FIBA sanction, but considered itself incompetent to rule about damages.
• The Swiss Federal Court decided to dismissed his complaint on 7 February 2001.
• The German Distric Court in Munich dismissed the Athlete's appeal on 20 December 2001.
• The German Institution of Arbitration dismissed his appeal on 10 October 2002).