CAS OG 04/004 David Munyasia v. International Olympic Committee

CAS ad hoc Division (OG Athens) 04/004 David Munyasia v. International Olympic Committee (IOC)

CAS arbitration N° CAS OG 04/004 Mr. David Munyasia vs International Olympic Committee (IOC)

Related case:

IOC 2004 IOC vs David Munyasia
August 10, 2004

• Boxing
• Doping (cathine)
• Jurisdiction of the CAS ad hoc Division in case of exclusion from the Olympic Games and withdrawal of the Olympic accreditation

If an appeal is lodged against a decision of exclusion from the Olympic Games and withdrawal of the Olympic accreditation, the jurisdiction of the CAS ad hoc Division is to confirm or reverse the decision of the IOC Executive Board. Any submission regarding deferral of the decision until further analysis of the urine had been undertaken and the implications thereof must be made before the International Federation within whose competence it is to further sanction or not sanction the athlete.

Mr. David Munyasia is a Kenyan Athlete competing in the boxing event at the Athens 2004 Olympic Games.

In August 2004 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance Cathine.

On 29 August 2004 the IOC Executive Board unanimously concluded that the Athlete had committed an anti-doping rule violation and decided to exclude the Athlete from the Athens 2004 Olympic Games. Thereupon the Board requested the International Boxing Association (AIBA) to consider any further action within its own competence.

Hereafter the Athlete appealed the IOC decision with the Court of Arbitration for Sport ad hoc Division.

The Athlete denied the use of prohibited substances during his career, he asserted that he was tested before without issues and that he had only used antibiotics.

The Panel finds that a doping offence has been established after a prohibited substance was founde in his samples and it cannot accept the request for deferral of the IOC-decision. Any submission regarding further lab analysis are properly made before the AIBA.

Therefore the CAS ad hoc Division confirms the IOC decision and decides on 15 August 2004 to reject the Athlete’s appeal.

CAS ad hoc Division (OG Athens) 04/003 Torri Edwards v. International Association of Athletics Federations (IAAF) & USA Track & Field (USATF)

Related cases:

• AAA No. 30 190 00675 04 USADA vs Torri Edwards - Final Award
  August 10, 2004 AAA No. 30 190 00675 04 USADA vs Torri Edwards - Interim Award
  July 22, 2007
• CAS 2008_A_1545 Andrea Anderson, LaTasha Colander Clark, Jearl Miles-Clark, Torri Edwards, Chryste Gaines, Monique Hennagan, Passion Richardson vs IOC
  July 16, 2010
  
  

• Athletics
• Doping (nikethamide)
• CAS ad hoc Division power of review
• Exceptional circumstances
• Negligence
• Sanction

1. The limitation in the IAAF Rules of the scope of review by CAS is not in line with Article 16 of the CAS ad hoc Rules, under which the Panel shall have unrestricted authority to review the facts and the law. It is also not in line with the WADA Code and, in particular, with the IAAF’s commitment thereunder to “incorporate (…) without any substantive changes”, inter alia, Article 13 (Appeals) of that Code.

2. Under the IAAF Rules, the exceptional circumstances provisions can only apply either when there is “no fault or no negligence”, as defined, in which case the athlete may have the period or ineligibility “eliminated”. Alternatively, if the athlete can demonstrate that there is “no significant fault or no significant negligence”, as defined, then the period of ineligibility may be reduced but the reduced period may not be less than half the minimum period of ineligibility otherwise applicable.

3. There is an obligation and a duty on an elite athlete to ensure that no prohibited substance enters his/her body, tissues or fluid. There is negligence in failing to inquire or ascertain whether a product contains a prohibited substance. The negligence (at a minimum) of the athlete’s chiropractor who had access to the box which stated the substances contained in the product (including nikethamide) and to the leaflet which even contained a warning for athletes must be attributed to the athlete who uses him in supplying either a food source or a supplement. It would put an end to any meaningful fight against doping if an athlete was able to shift his/her responsibility with respect to substances which enter the body to someone else and avoid being sanctioned because the athlete himself/herself did not know of that substance.

4. In the fight against doping in sport, federations must be supported in their adoption of the WADA Code. Therefore, a sanction of two years of ineligibility in application of the newly promulgated IAAF rules is not inequitable even if all Olympic Movement sports athletes are currently not subject to the same sanction for the same type of doping offence because not all federations have yet implemented the WADA Code.

In June 2004 the United States Anti-Doping Agency (USADA) has reported and anti-doping rule violation against the Athlete Torrie Edwards after her sample tested positive for the prohibited substance Nikethamide.

Consequently on 10 August 2004 the American Arbitration Association (AAA) Panel decided in its final award to impose a 2 year period of ineligibility on the Athlete including disqualification of all her results.

Hereafter the Athlete appealed the AAA decision of 10 August 2004 with the CAS ad hoc Division.

The Appellant didn't contest the occurrence of the doping infraction or the fact that Nikethamide was detected in her body fluids, but she argued that exceptional circumstances exist that should allow her to have the sanction eliminated or reduced pursuant to IAAF Rules 40.2, 40.3 and 40.4.

The Panel has considered, and was entitled to consider the materials before the IAAF Doping Review Board, its decision and the submissions and additional evidence placed by the parties before the Panel to determine whether or not the decision under appeal was correct. The Panel is satisfied that the determination of the IAAF Doping Review Board is the correct decision according to the terms of the IAAF Rules.

On the basis of the facts and legal aspects, the ad hoc Division of the Court of Arbitration for Sport renders the following decision on 17 August 2004:

1.) The appeal by Ms Edwards is dismissed.

2.) The decision issued by the North American Court of Arbitration for Sport Panel dated 10 August 2004 is upheld.

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

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

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

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

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

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

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

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

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

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

Related cases:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2.) Accordingly, the Panel finds:

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

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

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

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

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

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

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

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

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

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

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

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

CAS ad hoc Division (O.G. Sydney) 00/006 Dieter Baumann / International Olympic Committee (IOC), National Olympic Committee of Germany and International Amateur Athletic Federation (IAAF)

• Athletics
• Doping (nandrolone)
• Removal of accreditation for the Olympic Games
• CAS jurisdiction
• Principle of res judicata
• De novo hearing

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

2. A res iudicata defence can only succeed if the parties and the subject matter of the new dispute are the same as in the former action.

The Deutscher Sportbund e.V. (the German Sports Association, the “DSB”) held a without warning out of competition control test on 19 October 1999. The test was carried out on Mr. Dieter Baumann (the “Athlete”) while he was at training. The analysis of the A-sample in the IOC laboratory in Kreischa showed the following result: 19-norandrosteron 23.2 ng/ml and 19 noretiocholanolon 5.1 ng/ml. The B-sample test was norandrosteron 20.7 ng/ml. On 15 November 1999, the DSB arranged for another test to be carried out on the Athlete without giving warning. The analysis of the A-sample in the IOC laboratory Cologne shows the following result: 19 norandrosteron 24 ng/ml. The B-sample test was 26 ng/ml. The Athlete was given a hearing before the Anti-Doping Commission of the Deutscher Leichtathletikverband e.V. (the “DLV”). On 19 November 1999, the Anti-Doping Commission of the DLV temporarily suspended the Athlete on the grounds of a suspected doping offence. On 29 and 30 November 1999, employees of the IOC laboratory in Cologne took food substitutes and cosmetics from the Athlete’s home for the purpose of examining them and to locate a possible source for the positive findings. On 1 December 1999, an examination of a tube of toothpaste of the brand “Elmex” taken from the Athlete’s house revealed that the toothpaste contained norandrostendion. On 1 December 1999, an excretion test with a test person in the IOC laboratory in Cologne showed a positive finding in respect of nandrolon-metabolites after a specially prepared toothpaste containing norandrostendion had been used (Analysis of Prof. Dr. W. Schänzer, 2 December 1999). On 2 December 1999, the Athlete reported the commission of an offence by persons unknown to the Tübingen public prosecutor’s office. He claimed that his toothpaste had been manipulated. The public prosecutor’s office commenced an investigation. On 7 December 1999, while searching the Athlete’s house the police found a tube of toothpaste of the brand “Signal” in a sport bag in the basement. An examination of it showed that the toothpaste contained norandrostendion. On 30 May 2000, the Tübingen public prosecutor’s office discontinued the investigative proceedings started by the Athlete on the basis that no criminal involvement by a third party could be established. On 23 June 2000, the Rechtsausschuss (Legal Committee) of the DLV removed the Athlete’s suspension on the grounds that the necessary suspicion for a doping offence did not exist. On 13 July 2000, the Athlete was cleared by the Legal Committee of the DLV in respect of the doping suspicions. On 11 August 2000, a “Notice of Referral to Arbitration and Statement of the IAAF” was received by the DLV.
In August 2000, the Athlete was nominated by the NOC as a member of the German Olympic Team. On 30 August 2000, the Regional Court of Stuttgart granted an interim order against the IAAF on the application of the Athlete. Pursuant to such order the IAAF was prohibited under penalty of up to DM 500’000 for each breach from placing a competition ban on the Athlete until the end of the Olympic Games 2000 in Sydney.

CAS ad hoc Division (O.G. Nagano) 98/002 R. / International Olympic Committee (IOC)
CAS 1998 NAG 2 Ross Rebagliati vs International Olympic Committee (IOC)

Disqualification of an athlete for use of marijuana
Lack of legal basis to sanction the athlete

1. The sole basis to sanction the use of marijuana at the Olympic Games is Chapter II, article III, paragraph B of the IOC Medical Code, which treats the use of marijuana as doping only if there is an agreement between the IOC and the relevant international federation to that effect. Absence of any such agreement in this case.

2. The CAS recognizes that from an ethical and medical perspective, cannabinoids consumption is a matter of serious social concern. The CAS is not, however, a criminal court and can neither promulgate nor apply penal laws. The CAS must decide within the context of the law of sports, and cannot invent prohibitions or sanctions where none appear.

In February 1998 the Athlete Ross Rebagliati competed in the Canadian Men’s snowboard giant slalom during the Nagano 1998 Olympic Winter Games where he won the Olympic gold medal.

On 11 February 1998 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after his sample tested positive for the substance marijuana (cannabis).
Therefore the IOC Executive Board decided to rescind the Olympic gold medal due to the positive doping test.

Hereafter the Athlete appeals the IOC Executive Board decision with the ad hoc Division of the Court of Arbitration for Sport (CAS) present at the Nagano 1998 Olympic Winter Games.
The Athlete stated he did not use cannabis since April 1997 and argued that the positive test was the result of second hand cannabis smoke due to he attended two parties in January 1998 where people smoked cannabis.
The CAS Panel concludes that the sanction against the Athlete lack requisite legal foundation, due to marijuana (cannabis) wasn't actually on the IOC banned-substance list.

The ad hoc Division of the Court of Arbitration for Sport Panel decides:

1.) The IOC Executive Board's decision of 11 February 1998 is reversed.
2.) No costs are awarded.
3.) The decision shall be subject to immediate publication.

Cannabis has since been listed by the World Anti-Doping Agency (WADA) as a banned substance.