CAS ad hoc Division (O.G. Salt Lake City) 02/001 Prusis & Latvian Olympic Committee (LOC) / International Olympic Committee (IOC)

Bobsleigh
Jurisdiction to rule on doping offences
Eligibility of an athlete for the OG

1. It is a matter for the relevant International Federation to decide how it deals with doping offences which come within its jurisdiction and what sanctions to impose. If it were otherwise, the International Federation’s autonomy would be illusory.

2. In the absence of a clear provision in the Olympic Charter and in the Rules of the relevant International Federation entitling the IOC to intervene in the disciplinary proceedings taken by that International Federation, an athlete has a legitimate expectation that, once he has completed the punishment imposed on him, he will be permitted to enter and participate in all competitions absent some new reason for refusing his entry. If it were otherwise, there would be a real risk of double jeopardy.

In November 2001 the International Bobsleigh and Tobogganing Federation (FIBT) has reported an anti-doping rule violation against the Latvian Athlete Sandis Prusis after his sample tested positive for the prohibited substance nandrolone.
Analysis of the Athlete’s food supplement provided by the Athlete’s doctor showed it contained the prohibited substance.
Considering the circumstance the Executive Committee of the FIBT decided on 21 January 2002 to impose a 3 month period of ineligibility on the Athlete, starting on the date of the sample collection until 9 February 2002.

Because the Athlete was eligible to compete at the Salt Lake City 2002 Olympic Winter Games 6 days before the first bobsleigh event, the suspended athlete together with other Latvian athletes arrived in the Olympic Village in January 2002.
Previously the Latvian Olympic Committee (LOC) had received confirmation that the Athlete could be accredited and reside in the Olympic Village even before the end of the suspension period.
However on 1 February 2002 the IOC Executive Board notified the Athlete and the LOC that he was excluded from the Olympic Winter Games.

Hereafter on 3 February 2002 the Athlete and the LOC appealed the IOC decision of 1 February 2002 with the CAS ad hoc Division at the Salt Lake City Olympic Games.
The Applicants requested the Panel to set aside the IOC Executive Board decision and to participate in the Olympic Games in Salt Lake City.

The IOC submited that it alone has the right to accept or reject entries into the Olympic Games, and that the decision as to whether to accept or reject an entry is a purely administrative decision. The IOC relied in support of its decision principally upon the provisions of Rule 49 of the Olympic Charter.
The IOC further submited that its right in relation to entries is fundamentally different to the right to take measures or impose sanctions for which provision is made in Rule 25 of the Olympic Charter. Thus, the IOC argued that there is no necessity under Rule 49 for it to inform the athlete of its intention to refuse entry or of its reasons for refusal, or to give the athlete an opportunity to make representations.

The Panel notes that neither in its written pleading nor in its oral submission did the IOC attempt to hide the fact that it found the decision of the FIBT in Mr. Prusis’ case unacceptable, and that decision formed the background to its decision to refuse Mr. Prusis’ entry to the Olympic Games. That fact and the IOC’s decision raise two important issues for this Panel to decide. The first issue concerns the relationship between the IOC and the International Federations, and the second issue concerns the legitimate expectations of an athlete who has been punished by the relevant International Federation, and who has served his punishment.

In the Panel’s opinion, it was not legitimate for the IOC to rely on Rule 49 of the Olympic Charter to justify its decision. The Panel already stated their view on the possibility of double jeopardy that may arise if the IOC seeks to impose a further sanction over and above that imposed by the International Federation.

The Panel notes that Mr. Prusis was extremely fortunate to be the beneficiary of the FIBT’s improper conduct and of the lacuna in the Olympic Charter which at present precludes the IOC from intervening and appealing the sanction imposed by an International Federation.

The Panel is of the opinion that the FIBT ignored a number of CAS Awards in which it has been made clear that the “nutritional supplement defence” cannot be seriously invoked by athletes in the light of the many warnings by the IOC, WADA and the scientific community, and of the many instances of positive testing after use of such supplements. However, under the current rules, this failure by the FIBT does not empower the IOC to review the FIBT’s decision. This is, in fact, the essence of what the IOC Executive Board attempted to do by excluding the Athlete from the Winter Olympic Games. However, it is not within the Panel’s remit to make any order other than in relation to the appealed decision.

Therefore the CAS Ad hoc Division decides on 5 February 2002:

1.) The application is allowed.
2.) The decision of the IOC Executive Board dated 1 February 2002 that it would not accept Mr. Sandis Prusis’ inscription for the XIX Olympic Winter Games in Salt Lake City is set aside.
3.) Mr. Sandis Prusis is eligible to participate in the XIX Olympic Winter Games in Salt Lake City.

CAS 2002/A/360 Jovanovic v/USADA

In January 2002 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the Athlete Pavle Jovanovic after his A and B samples tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

Consequently on 26 January 2002 the AAA Panel decided to impose a 9 month period of ineligibility on the Athlete.

Hereafter the Athlete appealed AAA Panel decision with the Court of Arbitration for Sport (CAS). In his defence the Athlete filed arguments about the strict liability, the chain of custody, the testing, supplement contaimination and the sanction.

The Panel does not accept the Appellant's evidence as to the care he took about the taking of supplements. He did not approach the United States Bobsleigh Federation, or any other body, for guidance. He did not take medical advice.

He relied only upon his own research, which, as we have found, was considerably less thorough than he would have had us believe. Further he ignored wamings about the dangers of contamination given by a number of bodies, including the IOC and USADA. Finally, he expressed no contrition, and accepted no blame, but sought to blame the IOC, WADA and USADA but not himself for the predicament in which he now finds himself.

For these reasons, even if it had had the discretion to reduce the mandatory minimum sentence of two-year suspension, the Panel would not find "specific, exceptional circumstances" for doing so.

Therefore The Court of Arbitration for Sport decides on 7 February 2002:

1.) The appeal filed by Mr. Pavle Jovanovic on 28 January 2002 is dismissed.

2.) The decision of the AAA Panel of 26 January 2002 is varied as follows:

The Appellant is ineligible for competition for a period of two years from 29 December 2001.

3.) The award is pronounced without costs, except for the court office fee of CHF 500.— (five hundred Swiss Francs) paid by the Appellant which is retained by the CAS.

4.) Each party shall bear its own costs.

CAS 2001/A/337 B. / Fédération Internationale de Natation (FINA)

• Swimming
• Doping
• Decision of a civil court applied by a national federation
• Jurisdiction of the international federation
• Validity of the testing procedure
• Conditions for the storage of urine samples
• Proportionality of the sanction

1. An international federation cannot be bound by decisions of state courts issued in proceedings to which this federation has not been a party. Thus, FINA enjoys full discretion to issue its own decisions based on a certain set of given facts despite any proceedings on a national level which may also concern these facts but to which this federation was not a party.

2. A pathway from testosterone or androsterone to 19-norandrsoterone outside the human body may be theoretically conceivable, for example in case of degradation of urine samples, but, absent any scientific evidence to this effect, it remains pure speculation.

3. The wording of the FINA Rules clearly shows that FINA itself does allow deviations from the catalogue of fixed sanctions in the light of special circumstances. Thus, CAS has the authority to adjust the sanction against the athlete in the light of the circumstances of the case at stake. A sanction may not be disproportionate and must always reflect the extent of the athlete's guilt. Therefore, CAS in its capacity as an appeals body enjoys the same discretion in fixing the extent of the sanction as do the IF's internal instances. In fact, the Panel would enjoy this discretion even if there were no "exceptional attenuating circumstances".

In December 1999 the New Zealand Sports Drug Agency (NZSDA) 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 (nandrolone).

On 14 June 2001 the International Swimming Federation (FINA) Doping Panel decided to impose a 4 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 22 May 2000, including disqualification of his results.

Before the FINA Doping Panel could render its decision on 14 June 2001 this case was appealed with three New Zealand courts between January and December 2000 ruling about the sample transport irregularities to the laboratory.

Following these court decisions, the national swimming federation of New Zealand declined to institute or continue further proceedings against the Athlete which could have led to sanctions being imposed.

Hereafter in July 2001 the Athlete appealed the FINA Doping Panel decision of 14 June 2001 with the Court of Arbitration for Sport (CAS).

The Athlete requested the Panel to set aside the FINA decision of 14 June 2001 and claimed that FINA does not have any power to impose a sanction against him because there has not been any valid or lawful positive doping test.

The Athlete is of the opinion that FINA could not rely on the doping test results of the Sydney laboratory and the NZ-SDA. The test result was flawed due to the circumstances of this case.

The Panel finds that the proceedings in this case have unveiled a number of irregularities in the transportation, testing and analysis of the Athlete's samples which the Panel has examined one by one and with respect to each of which the Panel was not convinced that they were sufficient to discard the Athlete's test results.

The Panel is aware that doping control is a complex process susceptible to errors. However, the Panel is concerned about the number of irregularities in this case and wishes to point out that there may well be instances where the number of irregularities (even if insignificant on a stand-alone basis) reaches a level which may call into question the entire doping control process. The Panel is convinced that the number of errors stays below this threshold.

When taking into consideration all the elements of this case, in particular the fact that the Athlete is presumed to have acted at least negligently but without intent to indulge in doping, the Panel is of the view that, based on the evidence produced, there are mitigating circumstances which warrant a reduction of the maximum penalty allowed under the rules and regulations of the FINA.

In the absence of any explanation for the presence of the prohibited substance in the Athlete's body, other than the transformation theory which the Panel does not adopt, it must remain a period of suspension which is meaningful in all the circumstances. As a result, the Panel is of the opinion that it is adequate and appropriate to suspend the Athlete for two years.

Therefore the Court of Arbitration for Sport decides on 22 March 2002:

1.) The appeal is partially upheld.

2.) The decision of the FINA Doping Panel of June 14, 2001 is modified as follows:

The Athlete B. is suspended for a period of two years beginning on 19 May 2000. All results obtained by the Appellant six months prior to May 19, 2000 are cancelled.

3. (…)

TAS 2002/A/363 Pastorello c./USADA

Related case:

AAA 2001 No. 31 190 00164 01 USADA vs Joseph Pastorello
Janaury 15, 2002

In March 2001 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone (Nandrolone) due to a supplement he had used.

Consequently on 21 December the American Arbitration Association Panel decided to impose a 18 month period of ineligibility on the Athlete.

Hereafter in February 2002 the Athlete appealed the AAA decision with the Court of Arbitration for Sports (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.

The Athlete denied the intentional use of the substance, nor that he acted negligently and therefore had not breached the AIBA Doping Regulations. He asserted that a contaminated supplement was the source of the positiv test.

The Panel finds that the presence of prohibited substance has been established in the Athlete's samples and accordingly that he committed an anti-doping rule violation.

Following assessment of the case the Panel has considerable misgivings about the AAA's reduction of the sanction below the mandatory minimum, as well as about the condition imposed as a purported justification for that reduction and the jurisdictïon to impose such a condition. The Panel concludes, with considerable reluctance, that, on this occasion, it should not interfere with the AAA's decision.

Therefore the Court of Arbitration for Sport decides on 27 June 2002:

1.) The appeal fïled by Joseph Pastorello on the 7 February 2002 is dismissed.

2.) The decision of the AAA Panel dated the 18 January 2002 is affirmed.

3.) The award is pronounced without costs, except for the court office fee of CHF 500- (five hundted Swiss, Francs) paid by the Appellant, which is retainted by the CAS.

4.) Each party shall bear its own costs.

CAS Ad hoc Division (Commonwealth Games in Manchester), CG 02/001 G. / Commonwealth Games Canada (CGC) & Triathlon Canada (TC)

Triathlon
Eligibility of an athlete suspended provisionally
CAS jurisdiction
Right to a hearing before an interim suspension
Validity of the athlete removal from the team

1. The Applicant’s Entry Form contains a provision dealing with the resolution of disputes which provides for CAS jurisdiction. The Applicant is bound by this provision as well as CGC as a Commonwealth Games Association ("CGA"), that has sole authority to submit a competitor's entry (Games Management Protocol 2.1.1). It does so on behalf of TC as a representative governing body for triathlon. CGC has itself implicitly agreed to be bound by the same terms and conditions on the Entry Form as the Applicant and in particular, to the dispute resolution mechanism set out therein. The Panel concludes that CGC is for this purpose acting not only on its behalf, but on behalf of TC as a constituent member. Since the Panel has identified a dispute covered by the arbitration dispute resolution clause inserted in the Entry Form, the CAS Panel finds itself properly seized.

2. There is no provision in the ITU rules which requires that there be some form of hearing before an interim suspension. In this context it is important to bear in mind that under English law which is particularly relevant (the Entry Form specifies English law as its governing law) or indeed under general principles of law, a hearing before an interim suspension is not normally required by principles of fairness; moreover an interim or provisional suspension without a hearing is common in the rules of other governing bodies concerned with the problem of doping in sport. Such suspension, decided on an urgent basis, does not deprive the Applicant of a proper hearing at a later stage with the potential for an appropriate remedy.

In July 2002 the Canadian Centre for Ethics in Sport (CCES) has reported an anti-doping rule violation against the Athlete G. after his A and B samples tested positive for the prohibited substance nandrolone.
After notification a provisional suspension was ordered and Commonwealth Games Canada (CGC) decided to exclude the Athlete from the Manchester 2002 Commonwealth Games.

Hereafter on 31 July 2002 the Athlete appealed the decision to suspend him with the CAS Ad hoc Division at the Manchester Commonwealth Games.
The Athlete requested to be reinstated and argued that he was suspended without having had a fair hearing.

The Panel finds that a hearing before an interim suspension is not normally required by principles of fairness; moreover an interim or provisional suspension without a hearing is common in the rules of other governing bodies concerned with the problem of doping in sport. The rationale for summary reaction to a positive test is obvious: the public interest of the sport trumps the private interests of the athlete. It should be emphasised that such suspension, decided on an urgent basis, does not deprive the Applicant of a proper hearing at a later stage with the potential for an appropriate remedy.

Therefore the Ad hoc Division of the Court of Arbitration for Sport decides on 2 August 202:

The application filed by G. on 31 July 2002 for an order directing Commonwealth Games Canada and Triathlon Canada to reinstate him to Team Canada 2002, to return him immediately at their expense to Manchester, and to allow him to compete in the men's triathlon competition on Sunday 4 August 2002 is dismissed.

TAS 2002/A/378 Filippo Simeoni vs. UCl and FCI
CAS 2002/A/378 S. / Union Cycliste Internationale (UCI) and Federazione Ciclista Italiana (FCI)

• Cycling
• Acknowledgement of doping
• Duration of the suspension/probation period
• Calculation of the period of inactivity of the rider

1. The UCI Antidoping Examination Regulations (AER) apply to all licence holders irrespective of whether they admitted having been doped on the occasion of a specific race.

2. The period of normal inactivity should be construed restrictively, and should only be applied if there are no races during the period that the rider would otherwise participate in.

3. According to UCI AER, a probation to a sanctioned cyclist may be granted by CAS. In the present case, the athlete, who admitted having used prohibited and doping substances, did contribute in a relevant way to the fight against doping, insofar as he broke the «wall of silence» and contributed with his testimony to the criminal indictment and sporting penalisation of other people.

The Appellant, Filippo Simeoni, is a professional road cyclist. He is an Italian citizen and holder of a licence issued by the FCI. In the context of an investigation conducted by the Italian criminal authorities on the use of doping substances in cycling, the Athlete was called to testify as a witness in July 1999. In the course of that investigation, he admitted having used prohibited and doping substances from November 1996 until July 1997, at a time when his medical support was provided by Dr. Ferrari.

As a consequence of his anti-doping violation the FCI decided on 6 December 2001 to impose a 3 month period of ineligibility on the Athlete. However the UCI Commission Antidopage decided to set aside the FCI decision and imposed on 10 April 2002 a fine of CHF 2'000.- and a 6 month period of ineligibility on the Athlete.

In April 2002l the Athlete appealed the imposed sanction with the Court of Arbitration for Sport (CAS) and made the following assertions:

a) By rendering its decision of 10 April 2002 «automatically», the UCI violated fundamental rights of defence of the Appellant, i.e. his right to a fair trial and to cross-examination, the principle of ne bis in idem, the principle of separation between the investigating body and the disciplinary authority;

b) The UCI, by rendering its decision on 10 April 2002, did not act in due course and infringed upon the principle of certainty of law;

c) The rules on which the UCI based its decision of 10 April 2002 were either not in force or not applicable;

d) The UCI made an erroneous calculation of the period of inactivity applied in the Appellant’s case;

e) The Appellant should be rewarded for his co-operation and spontaneous recognition of his faults and, therefore, should have been granted probation.

The Panel feels that the Athlete did not show a fully co-operative and spontaneous behaviour since he only admitted having used doping substances in the course of the criminal investigation and, subsequently, he did not disclose this fact immediately to the national and international cycling bodies.

However, the Athlete did contribute in a relevant way to the fight against doping, insofar as he broke the «wall of silence» and contributed with his testimony to the criminal indictment and sporting penalisation of other people – in particular, one well-known physician – responsible of doping practices. The Panel concluded to follow the UCI’s proposal and to grant probation for two months to the Appellant.

In view of the foregoing reasons, the Panel holds that the term of suspension of the Athlete must be calculated.

• Beginning of the suspension: on the day following the decision of suspension rendered by the FCI: 24 November 2001.
• Minimum suspension of six months starting from 24 November 2001, thus ending on 24 May 2002.
• Period of inactivity for the Athlete.: from 24 November 2001 till 20 January 2002, i.e. 58 days to be added to the term of suspension.
• End of the term of suspension taking into account the period of inactivity of The Athlete (24 May 2002 plus 58 days): 21 July 2002.
• Addition of the period of time between 6 March 2002 and 10 April 2002 during which the Athlete was under no suspension and was free to compete (35 days): 25 August 2002.
• Reduction of two months of the term of suspension as a probation period: 25 June 2002 (end of the term of effective suspension imposed on the Appellant).

Therefore on 8 August 2002 the Court of Arbitration for Sport decides that:

1.) The Appeal filed by the Athlete, on 16 April 2002 is partially admitted.

2.) The Athlete is suspended, taking into account a period of inactivity, from 24 November 2001 until 25 June 2002. The fine of CHF 2'000.- is confirmed.

3. (...).

CAS 2002/A/362 IAAF vs Czech Athletic Federation (CAF) & Roman Zubek

CAS 2002/A/362 International Association of Athletics Federations (IAAF) / CAF & Z.

• Athletics
• Doping (DHEA)
• CAS jurisdiction
• Time-limit for appeal by IAAF
• Distinction between exogenous administration and endogenous production of DHEA

1. The CAS has jurisdiction pursuant to Rule 21 of the IAAF Rules which provides that all the appeals to the CAS be made within sixty days of the date of communication to the prospective appellant of the decision that is to be referred. When a national federation issues several decisions related to the same case, any activity or decision which goes beyond stating that the previous decision is final and therefore untouchable constitutes a new decision. The last decision considered as final by the national federation starts a new time period for appeal under the IAAF Rules.

2. Pursuant to the IAAF Rules, a doping offence takes place when a prohibited substance is present within an athlete’s body tissues or fluids. DHEA is listed as a prohibited substance. The doping offence is established if the testing procedures show that the concentration of DHEA in the A and B samples greatly exceeds the concentration that might result from endogenous production and if the isotope radio mass spectrometry (IRMS) analysis clearly indicates the synthetic origin of DHEA.

The Czech Athletic Federation (CAF) reported an anti-doping rule violation after sprinter Roman Zubek’s A and B samples tested positive for the prohibited substance dehydroepiandrosterone (DHEA). The Czech Athletic Federation (CAF) notified Zubek of the doping violation and ordered a provisional suspension. Zubek was heared for the Disciplinary Committee and requested additional testing of his sample.

The CAF Disciplinary Commission decided not to punish Zubek for the positive test result of the DHEA urine sample for the reason that in their opinion the found substance is [the body‟s] own substance. There is no limit for this substance in the body that should be understood as doping given by any competent authority (COC, IOC, and AC CR). As a matter of principle, the Disciplinary Commission of the Czech Athletic Federation cannot fairly evaluate the quantity of the substance in the body, if it was delivered artificially or if it was a body-own quantity. The CAF decided to cease Zubek’s suspension and not to punish him further.
Nevertheless Zubek’s sample was sent to the Cologne Laboratory for IRMS-testing for testing and revealing a high concentration of DHEA. After several deliberations with CAF the IAAF appealed CAF’s decision.

The Tribunal unanimously concludes that both tests in Praque and Cologne individually provide sufficient evidence to find a doping violation. Therefore, even if Zubek’s challenge to the second procedure had merit, it would be irrelevant. The tribunal also unanimously concludes that the original decision of the CAF not to sanction Z. for the doping violation was wrong.

Therefore the Court of Arbitration for Sport on 27 August 2002:

1.) Upholds the appeal filed by the IAAF on 31 January 2002.

2.) Finds that tests of Zubek’s samples from the 13 May 2000 athletics meeting in Prague provide evidence of a doping violation.

3.) Finds that the CAF failed to appropriately declare Zubek ineligible.

4.) Suspends Zubek from competition for 21 months, 13 days (two years less the two months, seventeen days served under the provisional suspension) from the date of this decision; i.e., until 10 May 2004.

CAS 2002/A/358 UCI vs O. & Real Federacion Española de Ciclismo

TAS 2002/A/358 UCI / O. & Real Federacion Española de Ciclismo (RFEC)

• Cycling
• Doping (EPO)
• Validity of the EPO testing method

1. The human body by nature does not produce recombinant EPO. In accordance with UCI regulations, the simple detection of recombinant EPO in the urine of the cyclist establish the anti-doping infringement.

2. The reliability of the technique developed and tested by the laboratory responsible for the analysis of urine samples has not been seriously scientifically challenged by the defendants. The Laboratory followed the Rules in use and in force during the performance of the analysis. Thus, the stand out of a significant predominance of basic isoforms by comparison with acidic isoforms, the laboratory has emphasized that the positive samples with recombinant EPO were beyond doubt. Also, EPO levels of 96.3% and 89.8% are well above the 80% level, applied by the laboratory as measure of precaution, and allow the valid conclusion of the existence of an anti-doping case.

In July 2001 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Spanish cyclist O. after his A and B samples tested positive for the prohibited substance recombinant human erythropoietin (rhEPO).

However on 17 December 2001 the Spanish El Comite Nacional de Competicion y Disciplina Deportive (CNCDD) on behalf of the Spanisch Cycling Federation (RFEC) filed the case after it ruled that due to the principle of the presumption of innocence it was impossible to declare the validity of of the EPO testing method.

Hereafter in Febuary 2002 the UCI appealed the RFEC decision of 17 December 2001 with the Court of Arbitration for Sport (CAS).

Considering the evidence and statements of the laboratory and expert witnesses the Panel concludes that the EPO testing method is valid and clearly shows the presence of the prohibited substance in the Athlete’s samples.

Therefore the Court of Arbitration for Sport decides on 24 September 2002 to impose on the Athlete a CHF 2.000,- fine, a 1 year period of ineligibility and a 2 year period as suspended sanction.