CAS ad hoc Division (OG London) 12/005 Jan Sterba v. World Anti-Doping Agency (WADA)

Related case:
CAS OG_2012_07 International Canoe Federation vs Jan Sterba
August 6, 2012

Canoe
Request to confirm the decision appealed
Standing to appeal

When coming to decide the issue of the standing to appeal, the constant CAS’ jurisprudence establish very clearly that only an aggrieved party, having something at stake and thus a concrete interest in challenging a decision adopted by a sports body, may appeal to CAS against that decision. This reflects the principle of the “Aggrievement Requirement” established in CAS case law and embodied in the CAS Ad hoc Rules. In this respect, when the only requested relief is to confirm a legal valid decision totally in the applicant’s favor, the latter has no legal interest. He is therefore not an aggrieved party and does not have standing to appeal.

On 9 July 2012 the International Canoe Federation Doping Control Panel (ICFDCP) decided to impose a 6 month period of ineligibility on the Czech Athlete Jan Sterba after his A and B samples tested positive for the prohibited substance β-methylethylamine.
The Athlete appealed the decision of 9 July 2012 and on 24 July 2012 the International Canoe Federation Court of Arbitration (ICFCA) decided to set aside the ICFDCP decision and ruled that no anti-doping rule violation has been committed by the Athlete.

Hereafter the Athlete filed an application with the CAS ad hoc Division at the London Olympic Games againt the World Anti-Doping Agency (WADA) with the ICF, the COC and IOC as interested parties.
The Athlete requested the Panel to confirm the ICFDCP decision of 24 July 2012 in full with no more delay so that he can be sure to compete in the London Olympic Games.

The Panel finds that in the present case the Athlete did not submit an application against a decision but actually requested the confirmation of a decision and as he himself, in his own words wrote “the Athlete fully agrees with appealed decision”. Therefore it is clear and obvious that the Athlete has no concrete legal interest in challenging the decision. In such circumstances the Athlete is not an affected party in the sense of this principal due to the fact that he is not an aggrieved party. It follows that the Athlete does not have standing to appeal in this case.

In light of the above conclusion, the Panel finds that there is no need to address the second question regarding the standing to be sued of WADA. However the Panel finds it important to note that this fact by itself i.e. that the only WADA is a party that was not a party in the previous proceedings and was not a party to the Appealed decision, could be sufficient, by itself, to deny the Application.

The ad hoc Division of the Court of Arbitration for Sport decides on 30 July 2012:

1.) Based on the Appealed Decision and the submissions of the parties, the Panel finds that there is presently no case or controversy preventing the Athlete from participating in the XXX Olympic Games. Therefore, the Applicant has no legal interest and standing to appeal against the decision issued on 24 July 2012 by the International Canoe Federation Court of Arbitration.

2.) The Application of Mr. Jan Sterba submitted on 28 July 2012 is denied.

CAS OG 10/04 Claudia Pechstein vs DOSB & IOC

• On 1 july 2009 the International Skating Union decided to impose a 2 year period of ineligibility on the German skater Claudia Pechstein for her anti-doping rule violation she committed.
• On 25 November 2009 the Court of Arbitration (CAS) decided to dismiss the Athlete's appeal (CAS 2009/A/1912) and to uphold the ISU Decision of 1 July 2009.
• On 10 February 2010 the Swiss Federal Tribunal also dismissed the Athlete's appeal.

Consequently the Athlete was ineligible to participate in the Vancouver 2010 Olympic Winter Games whereas the DSOB did not nominate the Athlete to participate in the 2010 Olympic Games.

Hereafter on 15 February 2010 the Athlete requested the DOSB to nominate her for the participation in the competitions of the female speed skaters during the Olympic Winter Games in Vancouver 2010. She also requested the IOC to allow her participation in those competitions.

Because the DOSB did not reply immediately on 15 February 2010 the Athlete addressed her application with the Court of Arbitration ad hoc Division.

The DOSB, the IOC and also the ISU requested the Panel to dismiss the Athlete's application and contended that the CAS ad hoc Panel has no jurisdiction the hear the Athlete's case.

Additionally the DOSB contended that the ad hoc Panel was bound by the Award CAS 2009/A/1912 of 25 November 2009 which was not set aside by the Swiss Federal Tribunal.

The Panel determines that the Athlete had not identified any specific decision by the IOC, an NOC, and International Federation or an Organising Committee for the Olympic Games which has arisen during the Vancouver Olympic Games or during a period of ten days preceding the Opening Ceremony of the Games on 12 February 2010 which could be the subject of an appeal to the ad hoc Division.

The Panel has, on its own, searched the record and found no such decision. As a result the Panel finds that it lacks jurisdiction to hear the present matter and it so rules.

Therefore the ad hoc Court of Arbitration for Sport decides on 18 February 2010:

1.) The ad hoc Division lacks jurisdiction to hear the present Application.

2.) The Application of Ms Claudia Pechstein is dismissed.

3.) Each party shall pay its own costs (see Article 22 of the CAS ad hoc Rules).

CAS OG 08/05 The Azerbaijan National Olympic Committee (ANOC) & Azerbaijan Field Hockey Federation (AFHF) vs Federation Internationale de Hockey (FIH)

CAS ad hoc Division (OG Beijing) 08/005 Azerbaijan Field Hockey Federation (AFHF) & Azerbaijan National Olympic Committee (ANOC) v. Fédération Internationale de Hockey (FIH)

Related cases:

• CAS OG_2008_01 Azerbaijan NOC, AFHF & the Players vs FIH & RFEH
  August 2, 2008
• CAS OG_2008_04 Azerbaijan NOC, AFHF vs FIH
  August 5, 2008
• Swiss Federal Court 4A_424_2008 AFHF vs FIH
  January 22, 2009

• Field Hockey
• Olympic Games
• Standing to bring an application before the CAS Ad hoc Division

The Applicants have no standing to file an application before the CAS Ad hoc Division because no adverse finding has been made against them by the Judicial Commission of FIH and thus there was no breach of the rules of procedural fairness in not giving the Applicants an opportunity to be heard.

From 12 to 20 April 2008, one of the three Women's World Hockey Qualifier competitions was held in Baku, Azerbaijan. The winner of the Event would qualify for the Olympic Games. The final of the Event was a match on Sunday, 20 April 2008, between the team representing the Real Federación Española de Hockey (RFEH) and the team representing the Azerbaijan Field Hockey Federation (AFHF). The Spanish team won the final 3-2.

On 21 May 2008, the FIH communicated that the A and B samples of two players, who competed for the Spanish team, taken during anti-doping tests carried out at the Event showed adverse analytical findings (AAF). In the same communication, the FIH stated that the players concerned had requested a hearing by the FIH Judicial Commission.

The hearing impacted not only the players but could also have affected the entire Spanish team by virtue of article 11.1 of the FIH Anti-Doping Policy, which reads: “if more than one team member in a Team Sport is found to have committed an Anti-Doping Rule violation during the Event, the team may be subject to Disqualification or other disciplinary action."

The FIH requested that the Judicial Commission find that the two players had committed an anti-doping rule violation and as a result disqualify the Spanish team from the Event.
The Judicial Commission found that one of the players committed an anti-doping rule violation. However, there was no fault or negligence on her part so no sanction was imposed; the second player was not found to have committed an anti-doping rule violation ("the Decision").

On 31 July 2008, AFHF, together with the players of the Azerbaijan Women's Field Hockey team and the ANOC, filed an application with the ad hoc Division of the CAS.

By decision of 2 August 2008, the ad hoc Division of the CAS dismissed the application filed by the ANOC, the AFHF and the Players on 31 July 2008 (the "First Award"). In this First Award, the CAS Panel found that ANOC, AFHF and the Players did not have standing to bring an appeal of the Decision.

Faced with the absence of standing, on 5 August 2008, the Applicants brought a further application before the CAS ad hoc Division seeking an order that FIH itself bring an appeal to CAS against the Decision.

By decision of 5 August 2008, the CAS ad hoc Division dismissed the application filed on 5 August 2008, including the requests for preliminary relief (the “Second Award”).

This amounts to a third appeal to the CAS ad hoc Division by the Applicants seeking substantially the same final relief as sought in the application which led to the First Award.

According to the Applicants’ submissions, this application arises by reason of their consideration, for the first time, of a copy of the Decision which was made available to them as a result of a direction given by the CAS Panel which delivered the First Award.

The Applicants submit that the Decision “shows the Applicants were openly blamed for committing sabotage of the Spanish team” and that in the Decision, “the Judicial Commission endorsed the allegations put forward by the Respondents.”

The Applicants contend that the alleged findings of the Judicial Commission against them were made in circumstances where they had a right to be heard and were not heard. They submit that, in accordance with article 22.1 of the FIH Statutes and Byelaws, article 6.1 of the European Convention on Human Rights and general principles, since they have been denied procedural fairness by the Judicial Commission, the Decision should be annulled.

The CAS Panel finds that the Applicants seem to be seeking to appeal against the dismissed First Award. The First Award was erroneous. Indeed, with great respect, the Panel considered that it was clearly correct. In these circumstances, the Panel concluded that the Applicants have no standing to bring this application. In addition it is not necessary to consider the merits of the application or whether the Decision was, in fact, a correct one.

On the basis of the foregoing facts and legal aspects, the ad hoc Division of the Court of Arbitration for Sport renders on 8 August 2008 the following decision:

The application filed by the Azerbaijan Field Hockey Federation and the Azerbaijan National Olympic Committee on 7 August 2008 is hereby dismissed.

CAS OG 08/04 The Azerbaijan National Olympic Committee (ANOC) & Azerbaijan Field Hockey Federation (AFHF) vs The Federation Internationale de Hockey (FIH)

CAS ad hoc Division (OG Beijing) 08/004 Azerbaijan National Olympic Committee (ANOC) & Azerbaijan Field Hockey Federation (AFHF) v. Fédération Internationale de Hockey (FIH)

Related cases:

• CAS OG_2008_01 Azerbaijan NOC, AFHF & the Players vs FIH & RFEH
  August 2, 2008
• CAS OG_2008_05 Azerbaijan NOC, AFHF & the Players vs FIH
  August 8, 2008
• Swiss Federal Court 4A_424_2008 AFHF vs FIH
  January 22, 2009
  
  

• Field Hockey
• Olympic Games

Discretionary power of IFs to adopt the reasoning of their judicial commission and not to appeal before the CAS in a doping matter. An International Federation does not have the obligation to appeal every time its own internal body decides after a review of the facts not to issue a sanction in a doping matter. The Federation must have the discretion to adopt the reasoning of its Judicial Commission and decide not to appeal.

The ad hoc Division of the Court of Arbitration for Sport decides on 5 August 2008:

The application filed on 5 August 2008 by the Azerbaijan National Olympic Committee and the Azerbaijan Field Hockey Federation and their requests for preliminary relief are hereby dismissed.

• CAS OG 08/01 The Azerbaijan National Olympic Committee (ANOC) & The Azerbaijan Field Hockey Federation (AFHF) &
• Hidayatova Nazira,
• Aliyeva Mi Kyong,
• Alizada Bo Jyong,
• Makayeva Feruza,
• Chegurko Lyudmila,
• Kheyirova Seda,
• Zeynalova Zarifahon,
• Mammadova Myungsoon,
• Suleymanova Zhang,
• Mirzaliyeva Dilfuza,
• Jafarova Inoyathan,
• Muzaffaova Emine,
• Nuriyeva Liana,
• Rustamova Seon Young,
• Aliyeva Marina,
• Shahbazova Viktorya (the Players)

vs The Federation Internationale de Hockey (FIH) & Real Federación Española de Hockey (RFEH)

CAS ad hoc Division (OG Beijing) 08/001 Azerbaijan National Olympic Committee (ANOC), Azerbaijan Field Hockey Federation (AFHF), Hidayatova Nazira and others (the Players) v. Fédération Internationale de Hockey (FIH)

Related cases:

• CAS OG_2008_04 Azerbaijan NOC, AFHF vs FIH
  August  5, 2008
• CAS OG_2008_05 Azerbaijan NOC, AFHF & the Players vs FIH
  August 8, 2008
  
  

• Field Hockey
• Olympic Games 2008
• Eligibility
• Standing to challenge a decision

In light of the FIH Anti-Doping Policy, the Applicants have no rights of appeal against the decision taken by the FIH Disciplinary Commission. Therefore, they have no standing to request a relief challenging such decision in relation to an alleged doping case committed by players of an opponent team during a qualifying tournament held for the OG.

The ad hoc Division of the Court of Arbitration for Sport decides on 2 August 2008:

The application filed by the Azerbaijan National Olympic Committee, the Azerbaijan Field Hockey Federation and the Players on 31 July 2008 is hereby dismissed.

CAS ad hoc Division (OG Turin) 06/010 Australian Olympic Committee (AOC) v. Fédération Internationale de Bobsleigh et de Tobogganing (FIBT)

Bobsleigh
Eligibility of a bobsleigh team to participate in the Olympic Games
Distinction between an adverse analytical finding and an anti-doping rule violation

An adverse analytical finding is simply a report by the Anti-Doping laboratory that a sample is positive for a prohibited substance. Thereafter, the applicable Anti-Doping regulations (FIBT Regulations in this case) provide for an extensive process, including the athlete’s rights: to ask for a B sample test, be present at the testing of the B sample, and to have a hearing to contest the adverse analytical finding. Only after that process has been completed and the adverse analytical finding is confirmed is an anti-doping rule violation found. As a result, a sanction is imposed on the athlete in the form of Consequences as defined in the FIBT Regulations.

In February 2006 the Brazilian Olympic Committee (BOC) has reported an anti-doping rule violation against the Brazilian bobsledder Armando Dos Santos after his sample tested positive for the prohibited substance nandrolone. As a consequence the BOC decided to exclude the Athlete to compete at the Turin 2006 Olympic Winter Games.

Hereafter the Australian Olympic Committee (AOC) filed an application with the CAS Ad hoc Division at the Turin Olympic Games and requested the Panel for an order to declare the Brazilian 4-man bobsleight team ineligible to compete in the Olympic Winter Games and to declare instead the Australian 4-man bobsleigh team eligible to compete in the same Games.

In order for the AOC to succeed, the Panel must first find that in accordance with the FIBT Regulations, there has been a finding of an anti-doping rule violation by a member of the Brazilian 4-man Bob team. The team member, Dos Santos, has not as of this date been found to have committed an anti-doping rule violation. No decision that Dos Santos committed an anti-doping rule violation has been rendered by any authority. The adverse analytical finding announced by the BOC in apparent disregard for Rule 14.14 of the FIBT Regulations that prohibit such public disclosure is not a decision pursuant to Article 13 of the FIBT Regulations which may be appealed to CAS. The Panel finds that to date Dos Santos has not been found to have committed an anti-doping rule violation, nor has he been provisionally suspended. The BOC has chosen to remove Dos Santos from the Olympic team based on its internal policies.

Because there has been no anti-doping rule violation found, the remainder of the AOC’s submissions do not need to be addressed by the Panel. The Application fails at the outset and therefore there is no need to interpret the meaning of Article 11 of the FIBT Regulations with respect to the effect that his doping infraction would have had on the “team” of which Dos Santos was a part at the Challenge Cup.

On the basis of the foregoing facts and legal aspects, the ad hoc Division of the Court of Arbitration for Sport renders the following decision on 20 February 2006:

1.) The appeal filed by the Australian Olympic Committee against the Fédération Internationale de Bobsleigh et de Tobogganing is denied.
2.) (…).

CAS ad hoc Division (OG Turin) 06/004 Deutscher Skiverband & Evi Sachenbacher-Stehle v. International Ski Federation (FIS)

Related cases:

• IBU 2014 IBU vs Evi Sachenbacher-Stehle
  July 14, 2014
• IOC 2014 IOC vs Evi Sachenbacher-Stehle
  February 21, 2014
• CAS 2014_A_3685 Evi Sachenbacher-Stehle vs IBU
  November 14, 2014
  
  

• Cross-country skiing
• Haemoglobin (Hb) value exceeding the threshold under the FIS Rules
• Alleged naturally high elevated level of Hb
• Application for a dispensation from the FIS Hb Rule

Since 2003 requests have been made each year to issue a dispensation for a naturally elevated high level of Haemoglobin (Hb) for this Athlete. All requests have been unsuccessful in persuading the FIS that this Athlete has a naturally high elevated level of Hb. FIS does agree that this Athlete does have a modestly elevated level of Hb but it is not sufficient to justify issuing a dispensation pursuant to Rule FIS B.4.8. Far be it for the CAS Panel to substitute its views to those of the experts who have declined to grant the dispensation to this Athlete for a naturally high elevated level of Hb over the past 3 years. The Panel is being asked to make a medical expert’s judgement through the guise of cancelling a Notification of Start Prohibition. It is not for the Panel to perform an evaluation similar to that contemplated by the FIS B.4.8, which would apply for the duration of theOlympic Games.

Ms Evi Sachenbacher-Stehle is a German Athlete selected to compete in the Women's Cross Country Skiing Events at the Turin 2006 Olympic Winter Games.

Following a blood screening/testing on 9 February 2006 that showed a level of haemoglobin above the maximum tolerated values, Ms Sachenbacher-Stehle was obliged by the FIS not to start any competitions for five consecutive days. As a result, the athlete would be forced to miss her first Olympic Games event on 12 February 2006.

Hereafter the German Ski Federation and the German cross-country skier Ms Evi Sachenbacher-Stehle filed an application in order to cancel the “Notification of Start Prohibition” issued by the International Ski Federation (FIS).

The athlete further asked the Panel to declare that the levels of haemoglobin were naturally elevated and had no connection with any haematological disease. The Panel refused to make a medical expert’s judgment and dismissed the application; moreover, it was convinced that the athlete did not have a naturally high level of haemoglobin.

On the basis of the facts and legal aspects, the ad hoc Division of the Court of Arbitration for Sport renders the following decision:

1.) The application filed by Ms Evi Sachenbacher-Stehle and Deutscher Skiverband against the International Ski Federation is denied.

2.) (…).

CAS OG 06/001 World Anti-Doping agency (WADA) vs United States Anti-Doping Agency (USADA) & United States Bobsled & Skeleton Federation (USBSF) & Zachery Lund

• Skeleton
• Doping (Finasteride)
• No Significant Fault or Negligence
• Period of ineligibility resulting in the exclusion from the Olympic Games

1. The use of Finasteride which has been included on the WADA Prohibited list since 1 January 2005 as a masking agent constitutes a doping violation in breach of the USADA Protocol and of the FIBT Doping Control Regulations.

2. Under the FIBT Doping Control Regulations, in order to establish “No Fault or Negligence” an athlete has to show that he did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he had used the Prohibited Substance. It cannot seriously be argued that an athlete who realized (and has been told by his national federation) that he had to check the Prohibited List each year and who failed to look at the list at all for over a year had exercised the utmost caution. It is a failure not to continue to monitor the Prohibited List, in accordance with his duty as an athlete.

3. In order to establish “No Significant Fault or Negligence”, an athlete has to show that his fault or negligence, when viewed in the totality of the circumstances and taking into account the criteria for “No Fault or Negligence” was not significant in relation to the anti-doping rule violation. Once the test has been satisfied, the period of ineligibility can be reduced. An athlete has satisfied the test where he has shown to be an honest athlete, open and frank with his failure, who for a number of years regularly checked the Prohibited List but failed to do so one year continuing however to include on the Doping Control Form the information that he was taking medication. The fact that the information was not picked up by any anti-doping organisation until the positive test is relevant.

In January 2006 the United States Anti-Doping Agency (USADA) reported an anti-doping rule violation against the Athlete Zach Lund after his sample tested positive for the prohibited substance Finasteride.

Consequently on 22 January 2006 the Athlete admitted the violation and accepted the sanction of a warning and disqualification of his competition results.

Hereafter in February 2006 the World Anti-Doping Agency (WADA) appealed the USADA Decision with the CAS ad hoc Division. WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

USADA contended that the Athlete was not a cheat and that the Athlete was mislead by the contents of the FIBT website regarding the substance Finasteride. Further it asserted that the Athlete's doping test record and medical history demonstrated that the Athlete used the product for medical purposed.

By contrast the Panel established the athlete who realized (and has been told by his national federation) that he had to check the Prohibited List each year and who failed to look at the list at all for over a year had exercised the utmost caution, albeit that for several years previously he had scrutinised the list with care. It is his failure to continue to monitor the Prohibited List, in accordance with his duty as an athlete, that has placed the Athlete in his present predicament.

In these circumstances, the Panel concludes that the Athlete, on his own admission, an admission which was contained on the Doping Control Form, committed an anti-doping violation and cannot escape a period of ineligibility.

Therefore the ad hoc Division of the Court of Arbitration for Sport renders the following decision:

1.) The Appeal filed by the World Anti-Doping Agency on 2 February 2006 is allowed in part.

2.) The USADA Decision made on 22 January 2006 is overruled.

3.) Mr Lund’s period of ineligibility is for one year commencing on 10 November 2005 and concluding on 9 November 2006.

4.) WADA’s request for the disqualification of Mr Lund’s results after 10 November 2005 is rejected.