TAS 2000/A/272 UCI v/ Outchakov
CAS 2000/A/272 UCI vs Outchakov

In September 1999 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Ukrainian cyclist Sergiy Oukchakov after his A and B samples tested positive for the prohibited substances Human chorionic gonadotrophin (hCG) and Testosterone with at a T/E ratio above the UCI threshold.

The UCI notified the Cycling Federation of Ukraine (FVSU) about the Athlete’s violation but the FVSU deemed in November 1999 that there was no doping and the Athlete was not subject to sanction. After deliberations between the UCI and the FVSU about implementing disciplinary proceedings the FVSU decided on 22 March 2000 to acquit the Athlete.

Hereafter in April 2000 the UCI appealed the FVSU decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the FVSU decision of 22 March 2000 and to sanction the Athlete.

The FVSU requested the Panel to dismiss the UCI appeal and argued that in this case decisions were already rendered in November and December 1999. Here the UCI failed to appeal these decisions within the time limit and there were more delays attributed to the UCI.
Further the FVSU contended that the Athlete only had used homeopathic products, and not pharmaceutical. These products were not prohibited and when ingested could have produced an increased hCG reading and a positive test.

The Panel deems that a FVSU decision was made on or about 22 March 2000 which was appealed by the UCI within the time limit. The Panel establish that there was the admission of the positive test and that an anti-doping rule has been committed. The Panel concludes that the Athlete failed to explain the concentration levels of hCG found in his system nor did he explain with evidence how and when he had used the homeopathic products.

The Panel also considers that the UCI could have responded in a more timely fashion, particularly between 23 December and 6 March and may have resolved this dispute earlier if it had been more specific between November 1999 and March 2000 on exactly what the FVSU was required to do.

Therefore the Court of Arbitration for Sport decides on 30 August 2000 and directs as follows:

1.) That the appeal of the Union Cycliste Intemationale (UCI), the Appellant, against the decision of the Ukrainian Cycling Federation (UCF), the Respondent, is granted and therefore the decision of UCF dated 22nd March, 2000 is hereby cancelled.
2.) That Mr. Outchakov is found guilty of a doping offence under UCI Regulations.
3.) That Mr. Outchakov is hereby disqualified from the "Vuelta a Espana 1999".
4.) That Mr. Outchakov is suspended under the UCI Regulations with effect from the 22nd March 2000 for a period of six (6) months ending on the 22nd September 2000 with the consequence that all results and points are cancelled and other penalties or sanctions, if any, under the aforesaid Regulations shall apply during this period.
5.) That Mr. Outchakov shall pay a fine under the UCI Regulations of CHF 4'000.--.
6.) That Mr. Outchakov shall pay the UCI costs of this appeal limited to the amount of CHF 3'000.-- inclusive of the UCI Court Office fee of CHF 500.--.
7.) That all financial amounts referred to above shall be payable within seven (7) days of the date of this award and any sums paid later shall attract interest at the rate of 6% per annum calculated on a daily basis.

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 ad hoc Division (O.G. Sydney) 00/010 Alan Tsagaev / International Weightlifting Federation (IWF)

Weightlifting
Exclusion of a National Weightlifting Federation due to three positive doping cases
Lack of legal basis for such sanction

Although an international federation may have certain general discretionary powers to govern its sport even in the absence of specific provisions in the statutes or regulations, a suspension of an entire federation from participation in the Olympic Games, including innocent athletes who have not committed a doping offence or any other violation of the applicable rules, at least requires an explicit, and unambiguous legal basis.

Mr. Alan Tzagaev is a Bulgarian Athlete selected to compete in the weightlifiting events at the Sydney 2000 Olympic Games.

On 22 September 2000 the Executiver Board of the International Weightlifting Federation (IWF) rendered the following decision against the Bulgarian Weightlifting Federation after 3 Bulgarian weightlifters tested positive at the Sydney Olympic Games:

1.) The Bulgarian Weightlifting Federation is suspended forthwith for a period of not less than 12 months, pending further investigation.
2.) The Bulgarian Weightlifting Federation must present a detailed project – supported by their National Olympic Committee and National Sports Authorities – ensuring the elimination of the use of doping among their athletes.
3.) All remaining lifters as well as officials from Bulgaria will not be allowed to take part in the Olympic Games.

Hereafter on 22 september 2000 the Bulgarian Athlete Alan Tsagaev appealed this IWF decision of 22 September 2000 with the CAS ad hoc Division at the Sydney Olympic Games and requested the Panel to set aside his exclusion to compete at the Olympic Games.

The Athlete argued that under the IWF Rules after three positive doping tests within one year, the IWF must impose a $ 50.000 fine on the respective member federation. A suspension may be imposed only in the event of non payment of that fine and the IWF made no request for payment of a fine to the Bulgarian sports organisations.

The Panel rules that the IWF decision of 22 September 2000 lacked a sufficient legal foundation and must therefore be annulled in its relevant portions as far as the Athlete is affected, i.e. by reference to items 1 and 3 thereof.

Therefore the CAS ad hoc Division decides on 25 September 2000:

The application is granted insofar as points 1 and 3 of the decision made by the International Weightlifting Federation Executive Board on 22 September 2000 are annulled for lack of legal basis, with the consequence that the Applicant is allowed to participate in these Olympic Games.

CAS ad hoc Division (O.G. Sydney) 00/011 Andreea Raducan / International Olympic Committee (IOC)

Related cases:

• IOC 2000 IOC vs Andreea Raducan & Oana Ioachin
  September 26, 2000
• Swiss Federal Court 5P_427_2000 Andreea Raducan vs IOC
  December 4, 2000
  
  

Gymnastics
Doping (pseudoephedrine)
Disqualification from the event
Principle of strict liability

1. The discrepancy in the volume of urine reported in the doping control form and by the laboratory cannot reasonably be considered to have affected the results of what is a valid test, provided that the laboratory received sufficient volume of urine to conduct a valid analysis.

2. The Anti-Doping Code considers doping as a strict liability offence. This means that no intentional element is required to establish a doping offence. The mere presence of a forbidden substance in the urine sample is sufficient. This has been repeatedly confirmed by the CAS.

3. To establish a doping offence, it is not required to demonstrate that a competitive advantage was reached.

Ms Andreea Raducan is a Romanian minor Athlete (16) competing in the Gymnastics (Artistic) Women’s Individual All-Around event at the Sydney 2000 Olympic Games.

On 25 September 2000 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after her A and B samples tested positive for the prohibited substance pseudoephedrine in a concentration above the IOC threshold.

After hearing the IOC Medical Commission and the IOC Executive Board established that the minor Athlete suffered from a headach, a running nose and a feeling of congestion. As treatment the team physician prescribed and provided to the Athlete a Nurofen Cold and Flu tablet on 20 and 21 September 2000.

Consequently the IOC Executive Board decides on 26 September 2000 to disqualify the Athlete including withdrawal of her medal and diploma.

Hereafter the Athlete appealed the IOC decision with the CAS ad hoc Division at the Sydney Olympic Games.
The Athlete requested the Panel to set aside the IOC decision of 26 september 2000 and for restoring the gold medal and diploma to the Athlete.

The Athlete accepted the test results and the validity of the samples analysis. However she argued that the sample volume of urine was unclear and not in accordance with the Anti-Doping Code and as a result the test result should be invalidated. Further she contended that she was not responsible for the anti-doping rule violation since the Nurofen was provided by her team physician.

The Panel finds the minor irregularity revealed in the record showing the volume of urine taken cannot reasonably be considered to have affected the results of what is a valid test. The Panel further finds, notwithstanding the discrepancy in the volume of urine reported, the laboratory received sufficient volume of urine to conduct a valid anaysis.

Also the Panel finds the subjective elements argued in the attack on the finding of doping by the IOC do not affect the decision on the existence of a doping offence and are submissions only related to the assessment of any disciplinary sanction imposed.

Therefore the CAS ad hoc Division decides on 28 September 2000:

1.) The Panel is aware of the impact its decision will have on a fine, young, elite athlete. It finds, in balancing the interests of Miss Raducan with the commitment of the Olympic Movement to drug-free sport, the Anti-Doping Code must be enforced without compromise.

2.) Accordingly, the Panel finds:

• a. The application is dismissed.
• b. The decision of the IOC of 26 September 2000 is upheld.

CAS ad hoc Division (O.G. Sydney) 00/015 Mihaela Melinte / International Amateur Athletic Federation (IAAF)

• Athletics
• Doping (nandrolone)
• Provisional suspension imposed by an IF during the Olympic
• Games CAS jurisdiction
• Principle of strict liability

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

2. If an athlete is removed from the field of play moments before his/her turn to compete, such action creates a dispute arising during the Games within the meaning of Article 74 of the Olympic Charter. On that basis CAS has jurisdiction to rule on the dispute.

In September 2000 the IAAF has reported an anti-doping rule violation against the Romanian Athlete Mihaela Melinte after her sample tested positive for 19-norandrosterone (Nandrolone). After notification to the Romanian Athletic Federation a provisional suspension was ordered.

The Athlete was participating at the Sydney Olympic Games and not notified when she was informed on 27 September 2000 that she has been removed from the participants’ list on account of a doping violation. She was then escorted off the field.

Hereafter on 28 September the Athlete filed an appeal with the CAS Sydney Ad hoc division.

At the conclusion of the hearing, the Panel rendered the following oral ruling on the Application:

• a.) This is an Application for urgent relief affecting the Applicant’s eligibility to compete in the hammer throw later today.
• b.) The Panel finds that the manner in which the Applicant was advised of her suspension and removed from the athletic field was embarrassing and disrespectful. During the hearing, the IAAF expressed its apology for this circumstance.
• c.) The Panel finds that it does have jurisdiction to order the relief requested if it deems that relief justified.
• d.) The Applicant’s essential contention is that the IAAF failed to follow its own rules - particularly because the athlete never had a chance to put forth her position explaining this positive test result.
• e.) However, the Applicant acknowledged at this hearing that she had the opportunity to present to this Panel the positions which she would have provided to the IAAF. The Panel has also heard the explanations of the IAAF.
• f.) The Panel has considered all of the forgoing and finds no violation by the IAAF of its rules which justifies granting the relief requested.
• g.) The Application is therefore denied.

CAS 2000/A/274 S. / Fédération Internationale de Natation (FINA)

Related case:

CAS 2000_A_274 S. vs FINA - Preliminary Award
May 26, 2000

• Swimming
• Doping (testosterone)
• Burden of proof
• Right to be heard
• Prohibition of the retroactive application of substantive rules

1. The fundamental evidentiary nature of the IRMS Rule is not altered by the fact that this provision precludes athletes from raising a defence based upon evidence of a physiological or pathological condition. The T/E Rule only permits such a defence because an elevated T/E ratio does not constitute direct and conclusive evidence of the exogenous administration of testosterone. There may be other physiological or pathological reasons for an elevated T/E ratio. By contrast, IRMS analysis provides direct evidence of the exogenous administration of testosterone and, accordingly, there is no place for such a defence under the IRMS Rule.

2. Where a party adopts a position contrary to one it has previously taken, its conduct may constitute an abuse of right when the other party has relied on the initial position to its detriment. The prohibition against venire contra factum proprium does not however preclude a party from tendering new evidence or raising new arguments in an appeals arbitration procedure.

3. Under the Swiss Private Law Act, the right to be heard in adversarial proceedings specifically guarantees each party’s right to participate in the evidentiary proceedings, to rebut allegations made by the opposite party, to examine and criticize evidence adduced by the opposite party and to bring its own evidence in rebuttal before an award is rendered to its detriment. However, a party must immediately protest if it considers that its right to be heard has been violated, failing which, the party shall be deemed to have waived the right to protest at a later stage.

4. In general, it is necessary to apply the laws, regulations or rules that were in force at the time that the facts at issue occurred. This general principle is, however, subject to several exceptions, including an exception for laws or rules that are procedural in nature. In the absence of an express provision to the contrary, laws and rules relating to procedural matters apply immediately upon entering into force and regardless of when the facts at issue occurred.

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.

Hereafter in May 2000 the Athlete S. appealed the FINA decision of 25 March 2000 with the Court of Arbitration for Sport (CAS). The Athlete requested the CAS Panel to set aside the FINA decision and disputed the validity of the testing results related to the IRMS analysis of the samples.

The Panel finds that in this case it is common ground that the elevated T/E ratio detected on 24 January 1999 did not recur over the period of the Athlete’s longitudinal hormonal study. The Panel does not accept the Athlete’s submission that the sole finding of an elevated T/E ratio on 24 January 1999 can be explained by her physical condition.

Accordingly, the Panel finds that the longitudinal hormonal study constitutes additional evidence that the Athlete’s elevated T/E ratio was due to an exogenous administration of testosterone.

The Court of Arbitration for Sport Panel concludes that the Athlete has committed a doping offence under FINA Rules and decides on 19 October 2000:

1.) The Appeal filed by S. on 4 May 2000 is dismissed.

2.) The decision issued by the FINA Doping Panel on 25 March 2000 is confirmed.

CAS 2000/A/281 H. / Fédération Internationale de Motocyclisme (FIM)

• Motorcycling
• Doping (ephedrine)
• Strict liability

1. As a general rule, in cases of strict liability offences it is sufficient that the federation is able to show that a forbidden substance was found in the urine of the athlete and that the positive test result of the sample was not affected by procedural defects in the laboratory. Under the FIM Rules it is not a requirement that the forbidden substance is contained in medication. The FIM Medical Code also expressly prohibits the use of chemical identical substances. This includes herbal or homeopathic substances. More generally, it can also be found in the jurisprudence of the CAS that it is sufficient that the active substance appears on the doping list. The name of the product is not relevant.

2. The established IOC testing procedures need to be applied strictly and do not leave room for the transfer of certain methods from one testing procedure to another on a case by case basis. If there was a need for the application of a correction factor in ephedrine cases this decision had to be taken by the competent authorities of the IOC. It cannot be the task of the CAS to amend on a case by case basis the rules established by the International Olympic Committee and applied by the IOC accredited doping laboratories.

3. In a case of strict liability it is irrelevant whether the athlete was aware that he was using a substance appearing on the doping list. The CAS considers that products and homeopathic substances that do not give the chemical name of the substances but the names of herbal substances need to be examined with great care by the athlete.

On 2 June 2000 the Fédération Internationale de Motocyclisme (FIM) decided to impose a 1 month period of ineligibility on the Athlete H. after his A and B samples tested positive for the prohibited substance ephedrine. Thereupon on 15 June 2000 the FIM International Tribunal of Appeal (TIA) decided to uphold the Athlete’s disqualification and to reduce the imposed sanction to 3 weeks.

Hereafter the Athlete appealed the FIM TIA decision with the Court of Aribitration for Sport (CAS).
In addition the Athlete H. requested CAS for interim relief to stay the execution of the FIM TIA decision which CAS dismissed on 6 July 2000.

In favour of the Athlete the Panel considers that there is no evidence that the he acted intentionally. Furthermore it is not easy to recognise the substance MaHuang as a herbal sister of ephedrine.

The Panel also notes that the concentration of ephedrine in his urine sample tested was only slightly over the limit. Finally the Athlete presented himself as an honest man during the hearing and showed great regret for what he had done.

On the other hand, the Athlete also admitted that he made a terrible mistake and acted carelessly. His behaviour shows a certain degree of negligence which makes it necessary to raise the sanction above the minimum.

Therefore the Court of Arbitration for Sport decides on 22 December 2000:

1.) The appeal filed by H. on 4 July 2000 is partially upheld.

2.) The decision rendered by the FIM International Tribunal of Appeal on 30 June 2000 is annulled.

3.) The CAS renders the following decision:

• a.) H. is disqualified from the second race of the FIM World Championship event held in Kyalami on 2 April 2000 and has to return all trophies, prizes and any other entitlements won;
• b.) The disqualification of H. in connection with the first race of the FIM World Championship event held in Kyalami on 2 April 2000 is invalid; H. is entitled to the trophies, prizes, points and any other entitlements on the basis of the result achieved;
• c.) H. is suspended from any competition under the governance of FIM for a period of three weeks beginning 12 October 2000, exclusive of the suspension already served (7 days).

CAS 2000/A/289 UCI vs C. & Fédération Française de Cyclisme

TAS 2000/A/289 Union Cycliste Internationale (UCI) /C. & Fédération Française de Cyclisme (FFC)

• Cycling
• Doping
• Confession of a rider

1. In accordance with the general principle of non-retroactivity, which is widely applied in criminal matters, the UCI Rules effective at the time of the anti-doping violation must be applied in order to determine the nature of the anti-doping violation and the sanctions as result of the same violation.

2. According to the principle of lex mitior, applied in criminal matters and the regulatory adopted by CAS in accordance with to the constant jurisprudence, the competent authority in charge of sanctioning must apply the new law, if this is more favourable for the accused, even when the violations occurred before these came into force. In addition, the principle of lex mitior can be applied to anti-doping rules in view of the quasi-criminal character of the disciplinary sanctions they are permitted to impose.

In April 2000 the French elite level Athlete C. mentioned in an interview with the French magazine his cycling experiences with doping for many years and the effect on the athlete’s health and the falsification of sport results.

He acknowledged that he had used EPO in 1996 when he became winner of the 1996 UCI Mountain Bike World Championships. With his confession the athlete wanted to attract attention to the current and persistent phenomenon of doping in cycling.

As a consequence of his confession the Disciplinary Commission of the French Cycling Federation (FCC) decided on 28 June 2000 to impose a 1 year period ineligibility on the Athlete as suspended sanction, a CHF 4.000,- fine including disqualification of the 1996 UCI Mountain Bike World Championships.

Hereafter the International Cycling Union (UCI) appealed the FCC decision of 28 June 2000 with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the FCC decision and to impose an active sanction on the Athlete C.

The Panel considers the particular circumstances of this case and finds it appropriate to impose a 3 month period of ineligibility on the Athlete starting on the day of the hearing, i.e. on 24 November 2000.

Therefore the Court of Arbitration for Sport decides on 12 January 2001 to impose a 6 month period of ineligibility on the Athlete with 3 months as suspended sanction, including a CHF 4.000,- fine and disqualification of the 1996 UCI Mountain Bike World Championships.