CAS 2002/A/374 M. / International Olympic Committee (IOC)

Related cases:

• CAS 2002_A_400 Johann Muehlegg vs FIS
  January 24, 2003
• IOC 2002 IOC vs Johann Muehlegg
  February 24, 2002
  
  

• Cross Country Skiing
• Doping
• Accreditation of the laboratory to conduct EPO testing
• Nature of Aranesp
• Validity of the testing procedure to detect Aranesp Sanction in case of out-of-competition doping control

1. The fact that an accreditation for the isoelectric focusing test was not granted to the laboratory at the time when the samples were tested does not mean that this laboratory was not capable of conducting the r-EPO test. The Olympic Movement Antidoping Code (OMAC) specifically provides for the evolution of scientific knowledge and testing procedures. What must be established to the comfortable satisfaction of the tribunal is that the testing procedure as carried out was in accordance with the prevailing standards and practices of the scientific community.

2. Aranesp is a substance, which has the effect of artificially boosting the oxygen in the blood by the introduction of a greater number of red blood cells, and for an elite performance athlete these additional red blood cells translate into enhanced stamina. The natural hormone EPO and r-EPO have precisely the same physiological effects. Aranesp is an analogue and mimetic of the Prohibited Substance r-EPO.

3. Aranesp is a Prohibited Substance and can not be produced naturally unlike r-EPO that has an overlapping fingerprint with EPO and can cause doubts as to whether the isoform is natural or artificial in nature. Therefore, it does not matter that there may be overlap with the natural bands of EPO as there can be no doubt that there was use of Aranesp and its source can not possibly be that of the human body. Therefore, the direct urine test employed to detect r-EPO can also be applied to detect Aranesp. The notable difference between the two applications is that Aranesp does not require a threshold safety margin to protect against false positives because of overlap, as does r-EPO.

4. The closing words of Article 3.5 OMAC indicate that where an athlete commits an out-of-competition doping offence, at least all the results obtained after the date the sample was taken shall be invalidated. The proper interpretation of this Article could be construed as limiting the invalidation of results to those results that were achieved after the later of the date the positive result was recorded or the date final judgment on the issue is rendered. This interpretation would result in the absurdity that an athlete could compete up until the final adjudication of a doping infraction and not have any results obtained in the interim period invalidated. This is contrary to the purpose of the OMAC and such an interpretation cannot be accepted. This article operates not to determine what results will be invalidated, but the date on which the invalidation of results is effectively imposed.

The Spanish Athlete Johann Muehlegg competed in the Men's 30 km Free Mass Start (February 9, 2002), the Men's 10 km Free Pursuit (February 14, 2002) and the Men's 50 km Classical (February 23, 2002). Muehlegg placed first in all three events acquiring Spain's only medals of the Games.

In February 2002 the International Olympic Committee (IOC) reported an anti-doping rule violation againt the Athlete after his A and B samples tested positive for the prohibited substance Darbepoetin (dEPO).

Consequently on 24 February 2002 the IOC decided that the Athlete was disqualified and excluded from the 2002 Salt Lake City Olympic Winter Games.

Hereafter in March 2002 the Athlete appealed the IOC Decision with the Court of Arbitration for Sport (CAS 2002/A/374). Also in June 2002 the Athlete appealed with CAS the decision of the International Ski Federation (FIS) to sanction the Athlete for 2 years after he tested positive for dEPO) (CAS 2002/A/400).

The Athlete requested the Panel to set aside the IOC decision and he disputed the reliability of the testing method and the  testing result.

Following assessment of the case the Panel concludes that the IOC Executive Board properly found Muehlegg to have committed a doping infraction and hereby upholds that decision. Also the Panel finds that the IOC Executive Board properly exercised its authority under the Olympic Charter and the OMAC to invalidate Muehlegg’s results in the 50km classical cross-country event, withdraw the gold medal obtained, and exclude him from the Games.

Therefore on 24 January 2003 the Court of Arbitration for Sport decides:

1.) The appeal filed by Johann Muehlegg on 16 March 2002 is dismissed.

2.) The decision of the Executive Board of the International Olympic Committee of 24 February 2002 is upheld.

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

4.) Johann Muehlegg is ordered to pay the sum of CHF 12’000.- (Twelve thousand Swiss Francs), to the IOC in contribution towards its legal costs.

CAS 2002/A/383 IAAF vs CBAt & Dos Santos

In May 2001 the IAAF reported an anti-doping rule violation against the Brazilian Athlete Fabiane Dos Santos after her A and B samples tested positive for the prohibited substance Testosterone with a T/E ratio above the WADA threshold. The Athlete's samples were collected in May 2001 in Brazil and in June 2001 in Spain and thereupon tested in the Laboratories in Montreal, Madrid, Oslo and Cologne.

Considering the findings of the Laboratories and the opinion of experts the IAAF concluded that the positive findings of the samples provided in Brazil were related to application of exogenous androgenic steroids and not to a pathological of physiological condition.

However the Brazilian Athletics Confederation (CBAt) Sports High Court accepted the evidence of an expert witness and decided on 11 March 2002 to absolve the Athlete due to there was doubt about the reliability of the B sample results.

Hereafter in May 2002 the IAAF appealed the CBAt Decision with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the Appealed Decision and to impose a lifetime ban on the Athlete.

The Panel assessed and addressed the following issues raised by the Parties:

• The doping offence;
• The Athlete's T/E ratio is inconsistent with normal endogenous production;
• IRMS analysis demonstrates that synthetic Testosterone was exogenously administered;
• The Athlete's allegation that the A sample and B sample are not from the same person;
• The Athlete's submission that Prof. Ayotte and Prof. Hemmersbach are not independent;
• The Athlete's submission that there was a violation of due process.

Accordingly the Panel determines that:

1. a prohibited substance, Testosterone, was present in the body of Ms. Dos Santos;
2. the presence of this prohibited substancej in and of itself, constitutes "doping" within the meaning of IAAF Rule 55.2;
3. this is the Athlete's second doping offence;
4. pursuant to IAAF Rule 60.2, the sanction of “ineligibility for life” automatically applies in the case of a second doping offence, and, therefore;
5. the CBAt Sports High Court "reached erroneous conclusion" within the meaning of IAAF Rule 22.3 when it absolved M. Dos Santos of a doping offence in its decision dated 11 March 2002.

Therefore the Court of Arbitration for Sport decides on 27 January 2003:

1.) The Appeal filed by the IAAF on 13 May 2002 is granted in part.

2.) The decision lssued by the CBAt's Sport High Court in Mauaus City on 11 March 2002 shall be modified as follows:

"Ms. Fablane Dos Santos committed an offence of doping within the meaning of IAAF Rufe 55.2(i) and is declared ineligible for life pursuant to IAAF Rule 60. 2(a)(II)".

3.) The Court Office fee of CH 500.- (five hundred Swiss francs) already paid by the IAAF shall be retained by the CAS.

4.) IAAF and CBAt shall each bear their own costs. IAAF is ordered to pay an amount of CH 5'000 (five thousand Swiss francs), together with interests at 5% from tho date of the decision, to Ms Fabiane Dos Santos as a contribution towards her fogal fees and expenses.

CAS 2002/A/399 P. / Fédération Internationale de Natation (FINA)

Related case:

FINA 2002 FINA vs Claudia Poll
June 3, 2002

• Swimming
• Doping (nandrolone)
• Validity of the sampling procedure
• Reliability of the analyses
• Sanction

1. The CAS has neither authority to apply or interpret the rules set by ISO (International Organisation for Standardisation), IEC (International Electrotechnical Commission) and ILAC (International Laboratory Accreditation Cooperation), or to force any laboratories to comply with those rules. The CAS is in no way a supervising authority for laboratories, being either IOC – ISO/IEC accredited or not. The CAS relies upon the accreditation process and is without authority to intervene and impose its views on the laboratory procedures to be applied by accredited labs. The absence of the “global uncertainty” in the A and B reports cannot, by any means, be considered as a gross violation of the ISO/IEC and ILAC guidelines, and therefore lead to arbitrary results and should consequently be corrected by the CAS Panel.

2. There is no provision which stipulates that a sampling agent is under no circumstances allowed to repeat a sample procedure and provides for that the possibilities to take another test is in any case exhausted after a first try. This does not mean that a sampling agent is more or less and always respectively allowed to make more than one urine collection. However, there is no provision which hampers him to do so when there are doubts about the regularity of the first test, especially when the athlete is casting doubts about that regularity.

3. Regarding the duration of the suspension, the CAS already had the opportunity to establish in previous awards that a four-year ban and even a life time ban were not disproportionate. Therefore, in a straightforward case of doping and when no circumstances tend to diminish the responsibility of the athlete, the policy set by FINA, IOC and other sporting federations in relation to doping is strict and consequently a four-year suspension and a six-month retroactive period involving cancellation of all result achieved shall be considered as proportionate.

In March 2002 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Athlete Claudia Poll after her A and B samples tested positive for the prohibited substance norandrosterone (nandrolone).

On 3 June 2002 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Athlete. Hereafter in July 2002 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).

The Athlete requested the Panel to annul the FINA decision of 3 June 2002 and claimed that the doping test upon which FINA's decision was based has no legal basis under FINA's own rules, as the Doping Officer was not authorised to perform a second sampling procedure. In addition the Athlete disputed the validity of the test results and the competence and capability of the laboratory.

The CAS Panel considers, that this is a straightforward case of doping, that the policy set by FINA, IOC and other sporting federations in relation to doping is strict and that no circumstances are present in this case which would tend to diminish the responsibility of the athlete.

Regarding the duration of the suspension, the CAS already had the opportunity to establish in previous awards that a four-year ban and even a life time ban were not disproportionate. Therefore, both sanctions imposed on her shall be considered as proportionate and shall be confirmed.

Therefore the Court of Arbitration for Sport decides on 31 January 2002 that:

1.) The appeal filed by Claudia Poll of 8 July 2002 is dismissed.

2.) The decision of the FINA dated 3 June 2002 is confirmed.

3.) (...)

CAS 2002/A/389, 390, 391, 392 & 393 A., B., C., D. & E. / International Olympic Committee (IOC)

• CAS 2002/A/389 Walter Mayers vs IOC
• CAS 2002/A/390 Marc Mayer vs IOC
• CAS 2002/A/391 Achim Walcher vs IOC
• CAS 2002/A/392 Peter Baumgart vs IOC
• CAS 2002/A/393 Volker Müller vs IOC

• Cross country skiing
• Blood doping
• Use of a prohibited method
• No legitimate medical treatment

1. The definition of Blood Doping pursuant to the Olympic Movement Antidoping Code (OMAC) includes the administration of the athlete’s own blood. The definition of blood doping is met irrespective of the amount of blood withdrawn and re-injected and whether or not it is potentially harmful to athletes’ health and/or capable of enhancing their performance.

2. The conditions under which a certain medical treatment, which would otherwise fall under the definition of doping, may be justified are truly exceptional and must therefore be demonstrated by the athlete or the person performing such treatment. To determine whether a certain medical treatment is legitimate under the OMAC, the CAS applies the following test:
a) The medical treatment must be necessary to cure an illness or injury of the particular athlete;
b) Under the given circumstances, there is no valid alternative treatment available which would not fall under the definition of doping;
c) The medical treatment is not capable of enhancing the athlete’s performance;
d) The medical treatment is preceded by a medical diagnosis of the athlete;
e) The medical treatment is diligently applied by qualified medical personnel in an appropriate medical setting;
f) Adequate records of the medical treatment are kept and are available for inspection.

3. In the present case, the UV Blood Transfusions were administered in a private place by a coach with no medical support and without supervision of, or disclosure to, the team doctor, the IOC Medical Commission or the team management. The UV Blood Transfusions were not even documented by proper records. Consequently, the test for legitimate medical treatment was not met and the blood transfusion must be considered as blood doping.

On 26 February 2002, shortly after the Salt Lake 2002 Olympic Winter Games, various items were found by a cleaner in a chalet in Midway, Utah, which was occupied by the Austrian cross-country and biathlon coach along with his wife. It was subsequently determined that the chalet had been frequently visited by members of the Austrian cross-country and biathlon teams.

The material discovered by the cleaner included vials and ampoules, various phosphate and sodium salts, vitamins and amino acids and transfusion equipment, including 3 blood bags (with blood residue), a blood transfusion device, multiple infusion sets (with blood in the IV lines), butterfly needles, syringes and used needles.

After an investigation, the IOC sanctioned on 26 May 2002 the Austrian team coach, the team chiropractor, and two Austrian athletes. Hereafter in June 2002 the IOC decision was appealed with the Court of Arbitration for Sport (CAS).

The main issues to be resolved by the Panel are:

(a) Was the IOC EB competent to issue a sanction against the Appellants?

(b) If yes: Did the IOC EB violate the minimum requirements regarding due process by not explicitly referring to the witness statement of Dr. Frick?

(c) Does the UV-Blood Transfusion as admittedly performed by Mr. Walter Mayer qualify as Prohibited Method according to the OMAC?

(d) If yes: Does the UV-Blood Transfusion as performed by Mr. Walter Mayer have to be considered as legitimate medical treatment?

(e) If UV-Blood Transfusions as performed by Mr. Walter Mayer are considered as a prohibited method: did Dr. Peter Baumgartl or Mr. Volker Müller facilitate the use of doping?

(f) Do the treatments performed by Mr. Volker Müller at the 2002 Winter Games have to be considered infractions on regulations applicable during these Games?

The Court of Arbitration for Sport decides on 20 March 2003:

1.) The Appeals filed by Walter Mayer, Marc Mayer, Achim Walcher and Dr. Peter Baumgartl are dismissed.

2.) The Appeal filed by Volker Müller is partially upheld.

3.) The CAS renders the following decision:

The ineligibility of Volker Müller to participate in all Olympic Games up to and including the Olympic Games held in 2010 is replaced by a strong warning.

4.) The Court Office fee of CHF 500.-- per Appellant remains with the Court Office. The Award is rendered without further costs.

5.) The Appellants shall pay to the Respondent as contribution towards its expenses the following amounts:

• Walter Mayer CHF 3.000.--,
• Marc Mayer, Achim Walcher and Dr. Peter Baumgartl CHF 2.000.-- each, and
• Volker Müller CHF 1.000.--.

CAS 2002/A/409 Longo / International Association of Athletic Federations (IAAF)

• Athletics
• Doping
• Application for early reinstatement
• CAS jurisdiction

1. The nature of the appealed decision should determine whether an appeal is possible within the meaning of art. 47 of the Code. The test should be whether the nature of the decision is disciplinary, irrespective of whether a judicial or an administrative authority has made the decision against which an appeal is directed.

2. A decision of the IAAF Council admitting an application for early reinstatement in case of exceptional circumstances (IAAF Rule 60.9) relates to the execution of a sanction, not to the sanction itself. Consequently, according to art. R47 of the Code, the CAS has no jurisdiction to review a decision of this nature.

3. A right of appeal against decision of the IAAF Council could be drawn from other IAAF rules than Rule 60.9, in particular Rules 21.2 & 21.3. However applications for reinstatement based on exceptional circumstances are not proceedings between two parties in the sense of IAAF Rule 21.2 and do not fall under the category of disputes listed in IAAF Rule 21.2. Therefore decision on reinstatement applications on the grounds of exceptional circumstances pursuant to IAAF Rule 60.9 cannot be appealed against by invoking the CAS.

On 29 November 2001 the Italian Federazione Italiana di Atletica Leggera (FIDAL) decided to impose a 2 year period of ineglibility on the Athlete Mr. Andrea Longo after his A and B samples tested positive for the prohibited substance Nandrolone. The FIDAL decision was upheld by the FIDAL Appeal Committee on 23 January 2002.

The Athlete did not appeal against the decision of the FIDAL’s appeal tribunal of 23 January 2002 to the CAS nor to the IAAF’s Arbitration Panel. On 13 April 2002, The Athlete, with the assistance of FIDAL, applied to the IAAF Council under IAAF Rule 60.9 for early reinstatement on the grounds of exceptional circumstances.

By letter dated 22 July 2002, The Athlete Mr. Andrea Longo was informed by FIDAL that the IAAF had rejected his application for early reinstatement.

Hereafter on 20 August 2002 the Athlete filed an appeal with the Court of Arbitration for Sport (CAS) against the decision of the IAAF Council of 3 and 4 July 2002 rejecting Mr. Andrea Longo’s application for early reinstatement.

The CAS Sole Arbitrator concludes that decisions of the IAAF Council on reinstatement applications on the grounds of exceptional circumstances pursuant to IAAF Rule 60.9 cannot be appealed against by invoking the CAS.

Therefore on 28 March 2003 The Court of Arbitration for Sport decides:

1.) The jurisdiction of the Court of Arbitration for Sport is denied.

2.) The appeal filed by Mr. Andrea Longo on 20 August 2002 is not entertained.

3.) (…).

CAS 2002/A/417 IAAF v/CADA & S. Witteveen

Ms. Solange Witteveen, is a world class high jumper and member of the Confederación Argentina de Atletismo (CADA).
The IAAF reported to CADA an anti-doping rule violation after
Witteveen’s A and B samples tested positive for the prohibited substance pemoline. The sample’s were provided at the South-American Championships in Manaus, Brazil, May 19, 2001.

After deliberations with the IAAF, CADA notified Witteveen of the doping violation and ordered a provisional suspension. Witteveen filled a statement in her defence and was heard for the CADA arbitral court.

Witteveen stated she did not take, at least voluntarily, any prohibited substance; all medication were provided by her personal physician; no medicine were taken without her physician’s consent and approval; and her previous doping controls in de last nine years tested negative.

On 20 June 2002, the CADA arbitral court in question decided that Ms Solange Witteveen was not guilty of a doping offence. One of the arbitrators, Dr. Juan Carlos Rivera, rendered a dessenting opinion.

On 21 August 2002, the decision of the arbitral court was sent to the IAAF by the President of CADA and received the same day by the IAAF. The lAAF determined to appeal the finding of the arbitral court in question, and filed its Statement of Appeal with the CAS on 1 October 2002.

The Court of Arbitration for Sport Panel considers for the following reasons that Ms Solange Witteveen has not established that her doping offense was unintentional:

• Pemoline is not found in any foodstuff and in principle can only be obtained on prescription.
• Consequently, Ms Solange Witteveen cannot have been contaminated through any food forming part of her ordinary diet.
• Ms Solange Witteveen herself ruled out the idea of an act of sabotage and has offered no evidence that an act of sabotage took place or might have been attempted.
• Ms Solange Witteveen has offered no evidence that her supplement was contaminated or that there was any risk that it be contaminated. For example, no evidence was offered that the chemist who prepared her supplement might have handled Pemoline and accidentally contaminated the supplement, whereas the testimony of both expert witnesses left the impression this was an unlikely occurrence in the circumstances.
• The only indication that Ms Solange Witteveen would not have resorted to taking Pemoline is constituted by her active participation in events against doping and her past choice of spontaneously subjecting herself to doping tests on certain occasions.

However, the Panel considers such factors insufficient to prove her innocence given the lack of evidence of any form of contamination or act of sabotage and the unlikelihood of either having occurred.
The fact that Ms Solange Witteveen could have stopped jumping after winning the event instead of continuing to jump to beat her own record with the certitude of being tested is not in itself a convincing argument, since experience teaches that when medals and/or new records are at stake athletes often underestimate or accept the risk of a test.
Consequently, the Panel considers that the Appellant's decision to apply the fixed sanction of lAAF Rule 60.1l(i)(a) is well founded. The referred decision was in error due to the failure to correctly apply the relevant lAAF rules.

Therefore the Court of Arbitration for Sport decides on 12 May 2003 that:

1.) The appeal filed by the International Association of Athletics Federations (lAAF) on 1 October 2002 is upheld.

2.) The decision issued by the Confederación Argentina de Atletismo (CADA) on 28 June 2002 is annulled.

3.) The following sanction is imposed on Solange Witteveen:
suspension of two years starting from 11 March 2003; after deduction of the served period of ineligibility of one year, seven months and twenty-four days, such suspension shall last until 17 July 2003, inclusive.

CAS 2003/A/507 Marko Strahija v. Fédération Internationale de Natation (FINA)

• Swimming
• Doping (hCG)
• Principle of a fair hearing
• Lex mitior
• Scope of the Panel review
• Integrity and validity of the laboratory testing results
• Burden of proving an abnormal concentration
• Specified substance
• Burden of proving unintentional doping

1. The principle of a fair hearing guarantees not only the parties’ right to be heard by the panel, but also their right to refute the other side’s factual submissions by proffering evidence. However, the principle of a fair hearing does not apply without restriction. Rather it is only guaranteed within the framework of the procedural rules and the orders made to manage the proceedings provided said orders are not arbitrary or impartially detrimental to one of the parties.

2. Under the lex mitior, the sanctions, which are more favourable for the athlete in the most recent DC Rules, must be applied if a doping offence has been committed. As a result, new FINA DC rules entered into force between the alleged doping offence and the hearing of the case are applicable.

3. According to a rule that exists in most legal systems, a complete investigation by an appeal authority, which has the power to hear the case, remedies – in principle – any flaws in the procedure at first instance.

4. An accredited laboratory has complied with the applicable procedural rules when the suitability of the screening method is evidenced by the fact that the laboratory has been awarded the ISO accreditation 17025 for precisely this method of detection. According to Appendix D of the Olympic Movement Anti-Doping Code, a second different immunoassay is required to confirm the findings of the first one. The use of a chemiluminiscent test (“Immulite test”) meets this requirement as it is a different test not only by name but also in terms of its substance; for the two-test procedures look at two different parts of the hCG molecule.

5. The burden of proof lies upon the anti-doping organisation to establish that an offence has been committed. This follows from the language of the doping control provisions as well as general principles of the Swiss Civil Code. Equally, the standard of proof required of the anti-doping organisation is high: it is less than the criminal standard, but more than the ordinary civil standard. Only then has the anti-doping organisation discharged his burden of proof. The discharge of the burden of proof is shattered if there is reasonable doubt (as distinct from the highest fanciful doubt) as to the findings of the laboratory.

6. DC 10.3 (DC Rules 2003) only applies if the substance is marked in the list of prohibited substances as being one that is susceptible to an unintentional anti-doping violation. However, hCG is listed as a “regular” doping substance which is not particularly susceptible to unintentional doping: ingestion of hCG is likely to increase the level of testosterone as well as the ratio of testosterone/epitestosterone. Therefore, in cases in which hCG is proven to be in the body fluids of an athlete, intentional doping is much more likely than unintentional doping. Therefore, DC 10.3 is not applicable to hCG.

7. The burden of submitting and proving unintentional doping lies with the athlete. By merely claiming that he did not take the prohibited substance, the athlete does not make any substantiated submissions on the question of whether hCG is particularly susceptible to unintentional doping. Further, under DC 10.3 the athlete must establish that the use of a specified substance was not intended to enhance sport performance. By merely claiming that he has never used this substance, the athlete has not tried to establish such requirement.

In July 2002 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Croatian Athlete Marko Strahija after his samples tested positive for the prohibited substance human chorionic gonadotrphin (hCG).

The Athlete already tested positive in March 2002 and to establish a doping offence or a physiological or pathological condition the Athlete underwent two further out-of-competition tests in July 2002. The first sample tested negative however the second A and B samples tested positive for hCG.

On 15 July 2003 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Athlete including retroactive disqualification of his results achieved by the Athlete between November 2002 and January 2003.

Under new FINA Rules due to the principle of lex mitior the Athlete’s sanction was reduced in September 2003 to a 2 year period of ineligibility with disqualification of his results achieved between November 2002 and 22 January 2002.

Hereafter in August 2003 the Athlete appealed the FINA decision of 15 July 2003 with the Court of Arbitration for Sport (CAS).

The Athlete requested the Panel that:

• He be exonerated and the doping charges against him be dismissed; or
• Alternatively, that if a doping offence must be found, then no suspension be issued, only a warning or a reprimand; or
• In the further alternative, if a doping offence must be found and a suspension should be issued, this suspension be proportionate in relation to the offence and
• taking into account the manner in which this case has been conducted before the FINA Doping Panel as well as the nature of the Prohibited Substance itself consequently be no longer then the time Athlete already served and subsequently to end on December 16, 2003; and that
• The Athlete recovers his costs in this matter, together with fees of counsel.

Considering the Athlete’s arguments the Panel finds that there are no apparent circumstances to indicate that the Barcelona Lab’s measuring procedure was wrong and the Athlete has not made any such substantiated submissions. The Panel concludes that the imposed 2 year period of ineligibility is appropriate and proportional in view of the given facts of the case.

Therefore the Court of Arbitration for Sport decides on 9 February 2004:

1.) The appeal filed by Mr. Strahija on 11 August 2003 is dismissed.

2.) The decision by the FINA Doping Panel dated 15 July 2003 is upheld as amended by the entry into force of the new DC rules on 11 September 2003. Accordingly the period of ineligibility for the Athlete is two (2) years. The suspension shall end upon the expiry of 26 November 2004.

3.) (...).

TAS 2002/A/431 Union Cycliste Internationale (UCI) c. R. & Fédération Française de Cyclisme (FFC)

Related case:

Swiss Federal Court 4P.149_2003 R vs UCI, FFC & CAS
October 31, 2003

In May 2002 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Athlete R. after his A and B samples tested positive for the prohibited substances methylamphetamine, parahydroxyamphetamine, d'amphetamine and bétamethasone.

The French Cycling Federation (FFC), notified the Athlete and ruled on 8 October 2002 that the presence of a prohibited substance was established. However it decided not to sanction the Athlete due to the FFC ruled that the circumstances of the sample collection were an infringement of the French public order.

Hereafter in November 2002 the UCI appealed the FFC decision of 8 October 2002 with the Court of Arbitration for Sport (CAS).

The CAS Panel rejected the Athlete’s argument that after signing the FFC sport licence he did not accept the CAS jurisdiction to appeal a case. The Panel also ruled that the circumstances related to the Athlete’s sample collection were not a breach of the French public order.

Therefore the Court of Arbitration for Sport ruled that:

1.) the UCI appeal of 22 November 2002 is upheld;

2.) the Decision of the French Cycling Federation of 8 October 2002 is set aside;

3.) Due to this is Athlete’s second violation, he is sanctioned with a 4 year period of ineligibility and a fine of CHF 4000, -

4.) The suspension starts on the date of notification of this decision.