CAS OG 16/13 Anastasia Karabelshikova & Ivan Podshivalov vs FISA & IOC

Related cases:
- FISA 2008 FISA vs Alexander Litvintchev, Evgeny Luzyanin & Ivan Podshivalov
January 14, 2008
- FISA 2008 FISA vs Anastasia Fatina & Anastasia Karabelshchikova
February 5, 2008

On 14 January 2008 the FISA Doping Hearing Panel decided to impose a 2 year period of ineligibility on the Russian rower Ivan Podshivalov and on 5 February 2008 the Panel imposed a 2 year period of ineligibility on the Russian rower Anastasia Karabelshikova for their anti-doping rule violations.

On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the "McLaren Report") describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.

On 24 July 2016, the IOC Executive Board issued a decision (the "IOC Decision") concerning the participation of Russian athletes in the Rio Games. According to this decision the following was stated:

"2. Entry will be accepted by the IOC only if an athlete is able to provide evidence to the full satisfaction of his or her International Federation (IF) in relation to the following criteria:
[. . .]
The IFs should carry out an individual analysis of each athlete's anti-doping record, taking into account only reliable adequate international tests, and the specificities of the athlete's sport and its rules, in order to ensure a level playing field.
[. . .]
3. The ROC is not allowed to enter any athlete for the Olympic Games Rio 2016 who has ever been sanctioned for doping, even if he or she has served the sanction".

On 25 July 2016, the FISA Executive Committee met to evaluate the conditions for participation established by the IOC and to comply with the IOC Decision. It issued conditions (the "FISA Statement") for the Russian rowers:

1.) A Russian rower must have undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow laboratory and registered in ADAMS from 1 January 2015 for an 18 month period.
2.) FISA considers a urine test, a blood test, or a urine and blood test or multiple tests taken on the same day to constitute one anti-doping test for this evaluation."

Additionally, the FISA Statement stated as follows: "The FISA Executive Committee underlines that the above evaluation does not mean that it has been established that the remaining entered rowers would have committed a doping offence, rather that they do not meet the conditions established by the IOC in their decision of 24 July 2016 for their entry to be accepted for the Rio 2016 Olympic Games.
The FISA Executive Committee decision was made as appropriate to the circumstances and based on the available information at the time, in the interests of the sport of rowing."

On 27 July 2016, the Russian Rowing Federation (RRF) was notified of the FISA Statement.
Hereafter on 2 August 2016 the two Russian rowers Anastasia Karabelshikova and Ivan Podshivalov appealed the IOC Decision and FISA Statement with the CAS Ad Hoc Division in Rio de Janeiro.

The Athletes requested the CAS Ad hoc Division Panel to set aside the IOC decision of 24 July 2016 and the FISA Statement of 25 July 2016 and to allow the rowers to participate to the Rio 2016 Olympic Games. IOC and FISA requested the Panel to reject the appeals.

The Panel has no doubts at all that the IOC acted in good faith and with the best of intentions when issuing such decision. The IOC confirmed that the aim of these criteria was to give an opportunity to those Russian athletes who were not implicated in the State-organised scheme to participate in the Rio Games.

The Panel sees no reason to depart from the line of CAS jurisprudence and determines that while it fully understands the exceptional circumstances that led the Executive Board to issue the IOC Decision, paragraph 3 results in an additional sanction. However this debate is largely moot, as the Panel finds that paragraph 3 does not respect the athletes' right of natural justice. In conclusion, the Panel determines that paragraph 3 of the IOC Decision is unenforceable, as it does not respect the rules of natural justice.

For the avoidance of doubt, the Panel supports the approach taken by the IOC at paragraph 2. As paragraph 3 is unenforceable, the Applicants should be considered by FISA pursuant to paragraph 2 of the IOC Decision to determine their eligibility or not without delay.

Therefore the Panel concludes that the appeals filed on 2 August 2016 shall be partially upheld and paragraph 3 of the IOC Executive Board's Decision dated 24 July 2016 is unenforceable.

The ad hoe Division of the Court of Arbitration for Sport decides on 4 August 2016:
1.) The application filed by Anastasia Karabelshikova and Ivan Podshivalov on 2 August 2016 is partially upheld.
2.) Paragraph 3 of the IOC Executive Board's Decision dated 24 July 2016 is unenforceable.
3.) All other prayers for relief are rejected.

CAS OG 16/12 Ivan Balandin vs FISA & IOC

On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the "McLaren Report") describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.

FISA received from WADA information from the McLaren Report confirming that 11 rowers had their samples tested and then reviewed by the Russian Deputy Minister of Sport. Six (6) of these were “SAVE” cases, including the Athlete Ivan Balandin.

FISA additionally checked on the ADAMS system and noted that the test was reported as negative. As the date of sample collection was missing (or marked “N/A”) on the information supplied to it, Matthew Smith, from FISA, additionally spoke to Emma Price from UK Anti-Doping, who was reviewing the testing results and procedures at the Moscow Laboratory, who confirmed to him that the sample had been collected on 21 May 2013.

On 24 July 2016, the IOC Executive Board issued a decision (the "IOC Decision") concerning the participation of Russian athletes in the Rio Games. According to this decision the following was stated:

"2. Entry will be accepted by the IOC only if an athlete is able to provide evidence to the full satisfaction of his or her International Federation (IF) in relation to the following criteria:
[. . .]
The IFs should carry out an individual analysis of each athlete's anti-doping record, taking into account only reliable adequate international tests, and the specificities of the athlete's sport and its rules, in order to ensure a level playing field.
[. . .]
3. The ROC is not allowed to enter any athlete for the Olympic Games Rio 2016 who has ever been sanctioned for doping, even if he or she has served the sanction".

As a consequence of the finding in the McLaren Report and the IOC decision the FISA Executive Committee decides on 25 July that the 11 Russian rowers were declared ineligible for the Rio Olympic Games and on 27 July 2016 FISA issued the statement that the Athlete Ivan Balandin will not be included in the list of rowers declared eligible as it understood that the IOC will not accept his entry.

Hereafter on 2 August 2016 the Russian Athlete appealed the FISA decision with the CAS Ad Hoc Division in Rio de Janeiro. The Athlete requested the CAS Ad hoc Division Panel to set aside the IOC Decision and the FISA Decision of 25 July 2016 and to allow the athletes to participate to the Rio 2016 Olympic Games. FISA and IOC requested the Panel to reject the appeal.

The Panel agrees that the matter at hand is eligibility. The IOC Decision was borne out of the need to respond to the government directed scheme to protect Russian athletes from ADRVs. All Russian athletes were to be analysed individually to see if they could rebut the presumption that they had benefited from this government scheme. Put simply, only if the Athlete could show he had not benefited, then he would be eligible for the Rio Games. There was an additional hurdle for those implicated in the McLaren Report, which was clarified by the IOC in its submission to the Panel.

The Panel has no doubts at all that the IOC acted in good faith and with the best of intentions when issuing such decision. The IOC confirmed that the aim of these criteria was to give an opportunity to those Russian athletes who were not implicated in the State-organised scheme to participate in the Rio Games.

Considering the Athlete’s arguments the Panel finds that there was no breach of good faith, procedural fairness, venire contra factum proprium or the right to be heard.
The Panel is satisfied that the information, provided to FISA and the additional checks it took with UKAD, were sufficient to conclude that the Athlete was implicated in the state-sponsored anti-doping scheme in Russia and by being “saved” he avoided likely doping sanctions and cannot satisfy the IOC’s eligibility criteria to rebut the presumption of guilt and, as such, assumes responsibility for his part in the scheme.

Therefore the CAS Ad Hoc Division Panel decides on 6 August 2016 that the application filed by Ivan Balandin on 2 August 2016 is dismissed.

CAS OG 16/11 Daniil Andrienko et al v.s FISA & IOC

CAS OG 16/11 Russian rowers vs FISA & IOC:
- Daniil Andrienko
- Aleksander Bogdashin
- Alexandra Fedorova
- Anastasiia lanina
- Alexander Kornilov
- Aleksandr Kulesh
- Dmitry Kuznetsov
- Elena Lebedeva
- Elena Oriabinskaia
- Julia Popova
- Ekaterina Potapova
- Alevtina Savkina
- Alena Shatagina
- Maksim Telitcyn
- Anastasiia Tikhanova
- Aleksei Vikulin
- Semen Yaganov

On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the "McLaren Report") describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.

On 24 July 2016, the IOC Executive Board issued a decision (the "IOC Decision") concerning the participation of Russian athletes in the Rio Games.

As a consequence of the finding in the McLaren Report and the IOC decision the FISA Executive Committee decides on 24 July that the 17 Russian rowers were declared ineligible for the Rio Olympic Games, because they had not "undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow laboratory and registered in ADAMS from 1 January 2015 for an 18 month period".

Hereafter on 1 August 2016 the 17 Russian rowers appealed the FISA decision with the CAS Ad Hoc Division in Rio de Janeiro. The Athletes requested the CAS Ad hoc Division Panel to set aside the FISA decision of 25 July 2016 and to allow the athletes to participate to the Rio 2016 Olympic Games. FISA requested the Panel to reject the appeal.

Considering the filed arguments of the athletes and considering the findings in the McLaren Report, the CAS Panel finds that a reliable adequate international test can only be assumed if the sample has been analyzed in a WADA-accredited laboratory outside Russia. The Panel rules that FISA's implementation and application of the criteria listed in the IOC Executive Board decision is consistent and fully compliant with the wording and the spirit of the IOC's decision. This has been also acknowledged by the IOC in the hearing.

The Panel notes that the testing history (i.e. the number of tests to which a single athlete has submitted) is not a rule, but a piece of evidence with the help of which the respective international federation shall establish whether or not in the case at hand the level playing field is affected. FISA determined - in line with the applicable criteria - that the level playing field is only ensured if Russian athletes are admitted to competition that have been tested on three different days in the past 18 months. No issues of retroactivity arise here, since the principle of tempus regit actum is not applicabe to questions of evidence.

The Panel finds that FISA did not change the eligibility criteria. Instead, it was the IOC (that governs and administers the Rio Olympic Games) who imposed the additional eligibility criteria specifically on Russian athletes. FISA only implemented and applied these criteria to its Russian athletes. This neither constitutes a breach of the principle of venire factum propium nor a breach of good faith.

Furthermore, the Panel finds that FISA did not act in bad faith when it refused the request of the RRF on 28 July 2016 to do additional testing on the Russian athletes. Last minute testing is not likely to contribute to establishing a level playing field with other competitors that have been under the umbrella of reliable testing over a longer period of time.
Finally, the Panel notes that this is a de novo procedure and that consequently, procedural mistakes that might have occurred at a prior instance fade to the periphery. The Athletes had an opportunity to state their case before this Panel. Thus, any alleged breach of the right to be heard at a prior instance must be considered healed.

The CAS Ad Hoc Division Panel concludes that the FISA decision must be upheld and decides on 5 Augustus 2016 that the appeal is of the Russian athletes Daniil Andrienko, Aleksander Bogdashin, Alexandra Fedorova, Anastasiia lanina, Alexander Kornilov, Aleksandr Kulesh, Dmitry Kuznetsov, Elena Lebedeva, Elena Oriabinskaia, Julia Popova, Ekaterina Potapova, Alevtina Savkina, Alena Shatagina, Maksim Telitcyn, Anastasiia Tikhanova, Aleksei Vikulin, Semen Yaganov is dismissed.

CAS OG 16/09 Russian Weightlifting Federation vs International Weightlifting Federation

On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the "McLaren Report") describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.

On 24 July 2016, the IOC Executive Board issued a decision (the "IOC Decision") concerning the participation of Russian athletes in the Rio Games.

As a consequence the IWF Executive Board decided on 29 July 2016 "to ban the Russian Weightlifting Federation (RWF) from recommending / entering / participating with athletes and Technical official at Rio Olympic Games 2016".

The grounds for this IWF decision were:

• World Anti-Doping Agency (WADA) 's Independent Person (IP) Report by Prof. Richard McLaren;
• IOC decision concerning the participation of Russian athletes in the Olympic Games in Rio 2016;
• Statistics (Re-analytical cases from the Beijing and London Olympic Games);
• Anti-Doping statistics concerning Russian athletes; 
• IWF Anti-Doping Policy;
• WADA Code;
• Olympic Charter;
• IOC, WADA communications.

On 1 August 2016 the Russian Weightlifting Federation (RWF) appealed the IWF-decision with the CAS Ad Hoc Division in Rio de Janeiro. The RWF requested the CAS Ad hoc Division Panel to set aside the IWF decision of 29 July 2016 and to allow the RWF and its athletes to participate to the Rio 2016 Olympic Games. The IWF requested the Panel to reject the appeal.

The Panel notes that the findings of the McLaren Report were taken seriously by the IOC and led to the IOC Executive Board's decision dated 24 July 216 that enacted eligibility criteria specifically for Russian athletes, which is unique in the history of the Olympic Games. Also the findings were endorsed by WADA, the supreme authority in the world of sport to lead and coordinate the fight against doping and by other international federations, such as the IAAF.

Furthermore, the information contained in the McLaren Report is also corroborated by the reanalysis of the athlete's samples at the London and Beijing Olympics. All nine 9 Russian athletes have tested positive for the (same) substance Turinabol. This is a strong indication that they were part of a centrally dictated program.

This is all the more true, since the substance Turinabol was described by (former head of the Moscow laboratory) Dr Rodchenko to be part of a "special cocktail" with which Russian athletes were doped. Finally, the Panel notes that the Applicant did not challenge the specific findings of the McLaren Report in relation to the Disappearing Positive Methodology.

The Panel finds that the RWF failed to demonstrate that the IWF's conclusion that, based on the evidence before it, the conduct of the RWF brought the sport of weightlifting in disrepute, was unreasonable. The Panel notes that according to the McLaren Report, the impressive number of 61 Russian weightlifters benefitted from the Disappearing Positive Methodology.

Finally, the Panel notes that the whole Russian delegation for the London Olympics was - according to the information provided - involved in doping. Also the Panel finds that the RWF has not shown to the Panel that any other member federation has been involved in a similar doping scheme of such magnitude.

Consequently, the Panel finds that there is no breach of equal treatment in the case at hand.

Therefore the ad hoc Division of the Court of Arbitration for Sport concludes that the appealed IWF decision must be upheld and decides on 5 August 2016 that the RWF appeal is dismissed.

CAS OG 16/04 Yulia Efimova v. ROC, IOC & FINA

Related cases:
- CAS OG_2016_13 Anastasia Karabelshikova & Ivan Podshivalov vs FISA & IOC
August 4, 2016
- FINA 2014 FINA vs Yulia Efimova
May 12, 2014
- FINA 2014 FINA vs Yulia Efimova
November 3, 2014

On 12 May 2014 the FINA Doping Panel decided to impose a 16 month period of ineligibility on the Russian swimmer Yulia Efimova for committing an anti-doping rule violation.

On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the "McLaren Report") describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.

On 24 July 2016, the IOC Executive Board issued a decision (the "IOC Decision") concerning the participation of Russian athletes in the Rio Games. According to this decision the following was stated:

"2. Entry will be accepted by the IOC only if an athlete is able to provide evidence to the full satisfaction of his or her International Federation (IF) in relation to the following criteria:
[. . .]
The IFs should carry out an individual analysis of each athlete's anti-doping record, taking into account only reliable adequate international tests, and the specificities of the athlete's sport and its rules, in order to ensure a level playing field.
[. . .]
3. The ROC is not allowed to enter any athlete for the Olympic Games Rio 2016 who has ever been sanctioned for doping, even if he or she has served the sanction".

As a consequence of the IOC Decision the FINA Bureau finds on 25 July 2016 that 7 Russian swimmer were not eligible to compete at the Rio 2016 Olympic Games.

On 30 July 2016 the Athlete appealed the decision of the IOC with the CAS Ad Hoc Division in Rio de Janeiro. The Athletes requested the CAS Ad hoc Division Panel to set aside the IOC decision of 24 July 2016 and the ROC’s decision to exclude her of the entire list and to allow the her to participate in the Russian national team for the Rio 2016 Olympic Games. IOC and FINA requested the Panel to reject the appeal.

The Panel has no doubts at all that the IOC acted in good faith and with the best of intentions when issuing such decision. The IOC confirmed that the aim of these criteria was to give an opportunity to those Russian athletes who were not implicated in the State-organised scheme to participate in the Rio Games.

The Panel notes that the IOC Executive Board made it clear that its decision should be understood to recognise that, where it applied collective responsibility and removed the presumption of innocence, an athlete was entitled to be accorded the rules of natural justice and individual justice. Further, it clearly stated that "each affected athlete must be given the opportunity to rebut the applicability of collective responsibility in his or her individual case".

The Panel finds that the IOC Executive Board exercised its autonomous right to accord these personal rights by reason of its decision. Thus, it bound itself in that way. Points 2 and 3 then represented the implementation of the decision. Contrary to its own decision to accord natural justice to an individual athlete, and in accordance with the Olympic Charter, point 3 constitutes a denial of that personality right.
Accordingly, the IOC Executive Board's decision which, on the one hand, seeks to implement the IOC decision to provide an opportunity to a Russian athlete to rebut the presumption of guilt of participation in the State-sponsored doping scheme but, on the other hand, by point 3 denies that opportunity, is
unenforceable.

The Panel concludes that the Athlete’s application should be partially upheld in that point 3 of the IOC Executive Board's decision dated 24 July 2016 is unenforceable. As was also stated in GAS OG 16/13, the Panel supports the approach taken by the IOC in point 2.

Therefore the ad hoe Division of the Court of Arbitration for Sport decides on 5 August 2016

1.) The application filed by Ms Yulia Efimova on 30 July 2016 is partially upheld.
2.) Point 3 of the IOC Executive Board's Decision dated 24 July 2016 is unenforceable.
3.) All other prayers for relief are rejected.

Arbitrage Chambre ad hoc du TAS (JO Londres) 12/009 Nour-Eddine Gezzar c. Fédération Française d’Athlétisme (FFA)

CAS OG 12/09 M. Nour-Eddine Gezzar & Féderation Française d'Athlétisme (FFA)

• Athletics (middle distance)
• Request for suspension of the contested decisions and readmission to the Olympic Games
• Competence rationae personae of CAS
• Conditions for suspension of the execution of a sanction rationae personae vis-à-vis these entities

1. National Federations sending their athletes to the Olympic Games are subjected to the provisions of the Olympic Charter, including the arbitration clause therein. The National Olympic Committees (NOCs) and the International Federations (IFs) are also subjected to the Olympic Charter. As a consequence, the CAS Ad Hoc Division is competence rationae personae vis-à-vis these entities.

2. In order to decide whether or not to suspend the execution of a sanction, the following should be taken into consideration:

• (i) Whether the plaintiff is liable to serious and irreparable damage;
• (ii) When the plaintiff establish prima facie reasonable chances of success; and
• (iii) When interest prevails of the plaintiff liable to damage over the party that is liable to maintain the status quo.

These conditions are in principle cumulative, however CAS must have the necessary latitude to assess the overall situation using the above three criteria, while it is not necessary or useful to provide strict conditions which could create more difficulties than the actual legal certainty.

The ad hoc Division of the Court of Arbitration for Sport (CAS) rejected the urgent application filed by the French runner Nour-Eddine Gezzar (3000m steeple) who was challenging the provisional suspension which had been imposed on him by the French Athletics Federation (FFA) further to a positive doping test with EPO at the French Championships on 17 June 2012.

The decision of temporary suspension was issued by the FFA on 12 July 2012 and confirmed on 25 July 2012, then was confirmed again by the IAAF on 27 July 2012, which immediately extended it at the international level. Nour-Eddine Gezzar had been then removed from the French Athletics team for the London Olympics and his accreditation had been removed by the French NOC.

The athlete contended that some errors have been committed during the anti-doping control procedure and requested to be readmitted in the start list of the 3000m steeplechase heats of 3 August 2012.

The CAS Panel concludes that the athlete did not provide sufficient elements to persuade the Panel to lift the provisional suspension pronounced by the FFA and confirmed by the IAAF.
Therefore on 3 August 2012 the CAS Panel decides to reject the application of Nour-Eddine Gezzar,

CAS ad hoc Division (OG London) 12/007 International Canoe Federation (ICF) v. Jan Sterba

Related case:
CAS OG_2012_05 Jan Sterba vs WADA
July 30, 2012

Canoe
Doping (ß-methylphenylethylamine)
BM as a specified stimulant
Application of Art. 10.5.2 in a case where Art. 10.4 applies
Measure of the sanction

1. By virtue of the written and oral evidence given by the different experts, the nature of the substance ß-methylphenylethylamine (BM) has been established to the satisfaction of the hearing panel as being a stimulant. The clear way the supplement is presented by its manufacturer also supports this conclusion. It follows that, under the clear wording of the 2012 Prohibited List, BM is a prohibited substance. However, BM is not expressly listed in Art. S6a of the prohibited list under Non-Specified Substances. As the final sentence of S6a provides that a stimulant not expressly listed in this section is a Specified Substance, BM is therefore a Specified Substance.

2. Arts. 10.5.1 and 10.5.2 of the ICF Anti-Doping Rules are meant to have an impact only in cases where the circumstances are truly exceptional and not in the vast majority of cases. Art. 10.5.2 should not be applied in cases where Arts. 10.3.3 or 10.4 apply, as those articles already take into consideration the athlete’s degree of fault for purposes of establishing the applicable period of ineligibility.

3. The facts that an athlete has established how the Specified Substance entered his or her body, that he acted from the very beginning in the utmost of good faith, that it is undisputed that he did not seek to gain a competitive advantage, that he compared the ingredients of the nutritional supplement with the 2012 Prohibited List, that he then sought the advice of an independent, qualified practitioner, that he declared the supplement on his Doping Control Form and that he is a senior athlete with a long-term clean anti-doping record, show to the requested comfortable degree of satisfaction of the hearing panel, a degree of fault to be so small that it justifies the full reduction of the period of ineligibility to no period, and the sanction of a reprimand.

In June 2012 the International Canoe Federation (ICF) has reported an anti-doping rule violation against the Czech Athlete Jan Sterba after his his A and B samples tested positive for the prohibited substance β-methylethylamine (BM).
The ICF considered this a substance included under the clause, “any other substances with similar chemical structure and similar biological effect(s), as expressed in the final sentence of category S6b of the 2012 Prohibited List.

On 9 July 2012 the ICF Doping Control Panel (ICF DCP) decided to impose a 6 month period of ineligibility on the Athlete. The Athlete appealed this decision with the ICF Court of Arbitration (ICFCA) which decided on 24 July 2012 to set aside the decision of the ICF DCP and ruled that “No anti-doping rule violation has been committed by Mr. Jan sterba” based on the conclusion the ICF has not established that the substance BM was to be considered a prohibited substance under the 2012 Prohibited List.

Hereafter on 29 July 2012 the ICF appealed the ICFCA decision of 24 July 2012 with the CAS ad hoc Division at the London Olympic Games because of the Athlete’s filed previously an application with the CAS ad hoc Division (CAS OG 12/007) about his participation at the Olympic Games.
The ICF requested the Panel to set aside the ICFCA decision of 24 July 2012 and to uphold the previous ICF DCP decision imposing a 6 month period of ineligibility on the Athlete.

In this case the Presence of the Substance BM in the Athlete’s samples was not disputed. Nor was disputed the structural similarity of BM to substances included in the 2012 Prohibited List at S6b (Levmetamfetamine and Phenpromethamine). It follows that, the issues to be decided by the Panel are:
a) Is BM a Prohibited Substance?
b) Had the Respondent violated the Anti-Doping Rules?
c) If so, what, in the circumstances of this specific case, should the appropriate sanction be?

The Panel finds that BM is a Specified Stimulant as a prohibited substance and the Athlete has committed an Anti-Doping violation under the ICF Rules.
Previously the Athlete has established how the Specified Substance entered his body through his use of the Supplement. It was accepted by the ICF that the Athlete did not intend to cheat and it is the Athlete’s first violation.

The Panel concludes, considering the Athlete’s degree of fault, that it is comfortably satisfied that the Athlete has acted from the very beginning in the utmost of good faith; that it is undisputed that he did not seek to gain a competitive advantage; that he compared the ingredients of the Supplement with the 2012 Prohibited List; that he then sought the advice of an independent, qualified practitioner; that he declared the Supplement on his Doping Control Form and that he is a senior athlete with a long-term clean anti-doping record, and so considers the Athlete’s degree of fault to be so small that it justifies the full reduction of the period of ineligibility to no period, and the sanction of a reprimand.

Therefore the ad hoc Division of the Court of Arbitration for Sport decides on 6 August 2012:

1.) The Application filed by the International Canoe Federation is partially upheld.
2.) The decision of the International Canoe Federation Court of Arbitration of 24 July 2012 is set aside.
3.) The Respondent, Mr Jan Sterba, is found guilty of the offence of using a Prohibited Substance under the International Canoe Federation Anti-Doping Rules.
4.) The sanction of a reprimand is imposed on the Respondent, Mr Jan Sterba.
5.) All other requests or motions for relief are rejected.

CAS OG 12/06 Ángel Mullera Rodriguez (Spain) vs the Royal Spanish Athletics Federation (Real Federación Española de Atletismo – RFEA), the Spanish Olympic Committee (Comité Olímpico Español – COE) & Superior Sports Council (Consejo Superior de Deportes – CSD)

Mr Ángel Mullera Rodriguez is a Spanish Athlete competing at international level as runner in the 3000m Steeplechase and he was selected for the Spanish Olympic athletics to compete at the London 2012 Olympic Games.

On 20 July 2012 the Technical Committee of the Royal Spanish Athletics Federation (RFEA) decided to exclude the Athlete to be part of the Spanish Athletics Team and his participaton at the London 2012 Olympic Games.

Reason for this decision was that the RFEA and CSD had received emails exchanged between the Athlete and an unnamed trainer concerning doping practices. In those emails, Mr Mullera and the trainer were explicit in asking and giving advice on some very specific doping protocols and on how to come out clean in any anti-doping controls. Also a Spanish newspaper published in July 2012 about these emails.
The RFEA and CSD had anonymously received those emails about six months earlier and because of the emails’ content they had subjected the Athlete to several out-of-competition anti-doping tests, with no adverse analytical findings.

The Athlete stated to the RFEA that the emails had been partially manipulated. He admitted that some parts of the emails were authentic and that he had in fact inquired about some doping protocols. However, he denied he followed the trainer’s advice or ever doped.

On 23 July 2012 the RFEA Disciplinary Committee rejected an application to open disciplinary proceedings against the Athlete for an anti-doping rule violation. The RFEA Disciplinary Committee stated that the evidence was not sufficient to ascertain an anti-doping rule violation.
Requested by the CSD the RFEA Disciplinary Committee opened on 26 July 2012 a new disciplinary procedure against the Athlete for his possible violation of “notorious and public acts going against the dignity and decorum of sports”.

Hereafter on 29 July 2012 the Athlete filed an appeal with the Court of Arbitration for Sport (CAS) Ad hoc Division at the same time the latest RFEA disciplinair procedure was still pending.
The Athlete requested the Panel to set aside the decision to exclude him and to order the RFEA to re-admit him to the Spanish Athletics Teams for his participation at the London 2012 Olympic Games. The Athlete argued that the RFEA decision to exclude him was wrong and breaching the applicable laws and regulations.

The CAS Panel has seen no evidence of a true technical reason behind the Athlete’s exclusion, the Panel finds that the RFEA arbitrarily excluded Mr Mullera from the Spanish team and thus violated its own selection criteria. Indeed, the discretion that a national federation can exert in selecting or de-selecting an athlete may not go as far as to become arbitrary. The Panel points out that this is not to be taken to mean that a national federation or a National Olympic Committee shall always be prevented from excluding an athlete from the national team if he or she is suspected of having doped, as is the case here. However, this precautionary exclusion of an athlete for ethical reasons, prior to any disciplinary sanction, must be provided by the pertinent selection rules. It is, of course, a matter for the RFEA to consider whether it wishes to amend its own rules in order to have the right to exclude an athlete from the Spanish national team if he or she is suspected of having behaved improperly with regard to doping matters.

The Panel wishes to express in clear terms that it does not intend to condone Mr Mullera’s inappropriate behaviour and that it fully understands the position of sports bodies which genuinely wish to fight against doping and, therefore, take appropriate measures in cases where one of their athletes behaves inappropriately. The Athlete’s exchange of emails asking how to dope and how to escape anti-doping controls strikes at the very heart of the fight against doping. Whether such behaviour is simply reproachable, or an "attempted use" in the meaning of the World Anti-Doping Code or a "notorious and public act against the dignity and decorum of sports" in the meaning of the Spanish Sports Disciplinary regulation, is not for this Panel to decide.
In any case, as accepted by the Athlete himself, his enquiries regarding doping methods were entirely inappropriate, and the Panel relies on the disciplinary proceedings that the RFEA’s Disciplinary Committee has commenced against the Applicant in order that the matter be investigated and, as appropriate, pursued through the proper channels.

The Panel holds that many will consider Mr. Mullera to be extremely fortunate to be the beneficiary of the RFEA’s improper procedural course and of the lacuna in the RFEA’s selection criteria. However, under the current rules and considering the explanation given by the RFEA, the RFEA may not exclude Mr. Mullera from the Spanish team for the London Olympic Games.

Therefore the Ad hoc Division of the Court of Arbitration for Sport decides on 1 August 2012 that:

1.) The application filed by Mr Ángel Mullera Rodriguez is partially upheld.
2.) The CAS does not have jurisdiction ratione personae over the Superior Sports Council (Consejo Superior de Deportes).
3.) The decision of the Royal Spanish Athletics Federation of 20 July 2012 to exclude Mr Ángel Mullera Rodriguez is set aside.
4.) The selection of Mr Ángel Mullera Rodriguez in the Spanish Olympic team is confirmed.
5.) The Royal Spanish Athletics Federation and the Spanish Olympic Committee are ordered to take all arrangements necessary to enable Mr Ángel Mullera Rodriguez to participate in the 3000m Steeplechase discipline at the XXX Olympic Games in London.
6.) All other requests or motions for relief are rejected.