CAS 2019/A/6226 World Anti-Doping Agency (WADA) v. Spanish Anti-Doping Agency (Spanish Agency for Health Protection in Sport) & Ibai Salas Zorrozua

• Cycling
• Doping (Athlete’s Biological Passport (ABP))
• CAS Jurisdiction
• Denial of an evidentiary request for failure to satisfy the relevancy requirement
• Standing to be sued
• Lis pendens
• Athlete Biological Passport as a reliable and accepted means of evidence in establishing an ADRV
• Legality and predictability of the sanction

1. Article R47 of the CAS Code explicitly provides that, in the context of sport, consent to arbitrate can be based on an arbitration clause contained in the applicable regulations. An arbitration clause may be incorporated and accepted by reference; it does not have to be fully incorporated in the applicable rules or regulations. The applicable rules or regulations – here the Organic Law of Spain No. 3/2013 of 20 June “On the protection of the health of sportspeople and the fight against doping in sport activities” as modified by the Royal Decree-Law 3/2017 of 17 February “to adapt to the changes introduced in the 2015 WADC” (the Spanish ADA) – do contain a CAS arbitration clause which incorporates by reference the arbitration clause contained in the World Anti-Doping Code (WADC). In this respect, Article 40.6 of the Spanish ADA grants WADA the right to appeal “Tribunal Administrativo del Deporte” (TAD) decisions to the CAS and Article 13.2.3 WADC clearly states that in cases where a decision is taken by a national-level appeal body (such as the TAD), WADA has the right to appeal to the CAS. The athlete consented to Article 40.6 of the Spanish ADA and the incorporated Article 13.2.3 WADC when he applied for and obtained a license to compete at national level. The asymmetric nature of Article 40.6 of the Spanish ADA does not invalidate the arbitration clause or preclude WADA from bringing an appeal to the CAS as it has a right to do so under that provision and the incorporated Article 13.2.3 WADC, to which the athlete has consented. Moreover, there is a clear justification for granting WADA a right to appeal decisions of a national-level appeal body i.e. to give WADA the avenue to ensure that WADC signatories are properly and uniformly enforcing the WADC. The CAS does also have jurisdiction rationae personae over the national anti-doping organization (NADO) which did not issue the appealed decision but did issue a decision imposing sanctions on the athlete for committing an anti-doping rule violation (ADRV) and subsequently participated as a party in the national appeal proceeding before the TAD. Furthermore, the NADO, as a signatory to the WADC, is bound by the arbitration clause contained in Article 13.2.3 WADC, which was incorporated to the Spanish ADA by reference through its Article 40.6 and clearly grants to WADA the right to appeal to the CAS against a decision of the TAD stemming from an underlying NADO decision. Finally, the CAS’ jurisdiction is unaffected by the parties’ position on the merits.

2. Pursuant to Article R44.3 of the CAS Code, a party requesting the production of documents must show that said documents are (i) likely to exist and to be relevant; and (ii) in the custody of the other party. An Adaptive Model (and its underlying software) is only a statistical model which triggers alerts identifying abnormal profiles that warrant further attention and review; it does not in itself constitute evidence of doping. Therefore, the relevancy requirement of Article R44.3 of the CAS Code is not satisfied.

3. A party has standing to be sued (“légitimation passive”) only if it has some stake in the dispute because something is sought against it. A NADO has standing to be sued if it was affected by the appealed decision, in that the appealed decision overturned its own findings that the athlete had committed an ADRV, and the appeal involves an essential interest of the NADO (in particular, its disciplinary powers) and its resulting award will be enforceable and have a binding effect towards both respondents. The fact that the Spanish NADO does not dispute WADA’s position on the merits, or cannot respond for the TAD nor assume the appealed decision as its own is irrelevant to the issue of whether or not it is affected by the appeal.

4. According to Article 186.1bis of the Swiss Federal Act on Private International Law (PILA), there is lis pendens if three cumulative conditions are met: (i) a proceeding at a State court or another arbitral tribunal and the CAS arbitration are between the same parties and concern the same matter; (ii) said other proceeding is “already pending” before the CAS arbitration started; and (iii) the party claiming lis pendens proves the existence of “serious reasons” requiring the stay of the CAS proceedings. Absent the “already pending” requirement, there is no lis pendens within the meaning of Article 186.1bis PILA.

5. According to Article 3.2 WADC, an ADRV can be proved by any “reliable means”, including by the use of an ABP. It is undisputed that the ABP profile is a method of proving blood doping and not an ADRV in and of itself under the WADC. However, an ABP profile is a reliable and accepted means of evidence in establishing an ADRV. As such, if, in interpreting abnormal values in an ABP and any other evidence from a quantitative and qualitative standpoint, a panel is convinced that the abnormal values were caused by a “doping scenario”, an ADRV can thereby be properly established, even without establishing a specific reason for the blood manipulation. The inference drawn from abnormal blood values is enhanced where the ascertainment of such values occurred at a time when the athlete could benefit from blood doping (i.e., if the levels coincide with the athlete’s racing schedule). A request for an athlete to provide an alternative explanation to the abnormal values in his or her ABP does not create a presumption of guilt nor a shift in the burden of proof; the burden continually remains on the anti-doping agency pursuant to Article 3.1 WADC to prove that the abnormal values in the ABP were caused by a “doping scenario” as opposed to any of the hypothesis put forward by the athlete. This is in full keeping with the legal principle of the presumption of innocence. Indeed, if an athlete submits explanations for abnormal results, it is the anti-doping agency’s burden to establish that those explanations do not rebut the high likelihood of an ADRV established through the assessment of the ABP.

6. For a sanction to be imposed, a sports regulation must prescribe the misconduct with which the subject is charged, i.e., nulla poena sine lege (principle of legality), and the rule must be clear and precise, i.e., nulla poena sine lege clara (principle of predictability). Under the applicable regulations, the utilization, use or consumption of prohibited substances and methods including blood doping is a serious offense sanctionable with a period of ineligibility. This is a sufficiently clear, precise and unambiguous rule that provides a sufficient legal basis to find an ADRV and sanction the athlete. It is unnecessary to establish the exact type of blood doping to find an ADRV and sanction an athlete. The fact that the ABP can only show that there has been blood manipulation but not the exact type of blood doping practice does not violate the principle of legality or any other fundamental principle.

The Spanish Agency for the Protection of Health in Sport (AEPSAD) reported an anti-doping rule violation against the cyclist Ibai Salas Zorrozua after an Expert Panel concluded unanimously in February 2018 in their Joint Expert Report that the Athlete’s hematological profile “highly likely” showed that he used a prohibited substance or a prohibited method: the use of EPO or Blood doping. 

This conclusion of the Expert Panel was based on assessment of blood samples, collected in the period from 25 January 2017 until 3 August 2017 reported in the Athlete’s Biological Passport (ABP).

In July 2018 the Expert Panel confirmed their conclusion in a second Joint Expert Report and on 3 October 2018 AEPSAD decided to impose a fine and a 4 year period of ineligibility on the Athlete. 

However on 8 February 2019 the Administrative Court of Sport in Spain (TAD) decided to set aside the AEPSAD Decision and to annul the imposed sanction on the Athlete. Hereafter the World Anti-Doping Agency (WADA) had issues with AEPSAD and TAD about the release of the Athlete’s case file and finally appealed in March 2019 the TAD Decision with the Court of Arbitration for Sport (CAS). The CAS Panel rendered a decision based on the written submissions of the parties. 

WADA requested the Panel to set aside the TAD Decision of 8 February 2019 and to impose a 4 year period of ineligibility on the Athlete. It contended that the Athlete’s ABP profile clearly showed multiple abnormalities as evidence that he committed an anti-doping rule violation.

WADA asserted that TAD erred in annulling the sanction on the ground that the ABP was not a reliable means of establishing an anti-doping rule violation. Whereas CAS jurisprudence already has accepted the validity of ABP as a reliable means of detecting blood doping. 

AEPSAD denied that it has standing to be sued and that it had to be addressed against TAD as body that issued the Appealed Decision. 

Based on CAS jurisprudence the Panel finds that AEPSAD does have standing to be sued and it is convinced that the ABP model is a reliable and valid means of establishing an anti-doping rule violation. The Athlete failed to demonstrate that there are serious reasons, invoking the principle of lis pendens in seeking to preclude the CAS Panel from proceedings with the present arbitration because WADA and the Athlete had filed appeals before the Spanish courts. 

Considering the evidence regarding the Athlete’s ABP the Panel deems that an anti-doping rule violation can be found on the basis of an analysis of Samples 1 to 6 only, and that no taking into account Samples 7 to 10 is neither arbitrary nor in violation of article 9.3 of the Spanish Consititution. 

In conclusion, the Panel taking following into account that:

1. the values detected in the Athlete’s ABP were highly abnormal and indicated a high probability of doping;
2. no contradictory evidence exists (i.e., that the Athlete has not provided any credible, physiological or pathological reason or condition to explain the abnormality in the ABP values); and
3. the timing of the detection relative to his competitions

The Panel is comfortably satisfied that the abnormal values were caused by a blood doping scenario. As a result, the Panel holds that the Athlete violated Article 22.1(b) of the Spanish ADA.   

Therefore the Court of Arbitration for Sport decides on 4 August 2020 that:

1.) The CAS has jurisdiction and the Appeal filed on 27 March 2020 by WADA against the Spanish Agency for Health Protection in Sport and Mr Ibai Salas Zorrozua is admissible.

2.) The appeal filed by WADA on 27 March 2019 against the Spanish Agency for Health Protection in Sport and Mr Ibai Salas Zorrozua is upheld.

3.) Mr Ibai Salas Zorrozua is guilty of an anti-doping rule violation.

4.) Mr Ibai Salas Zorrozua is sanctioned with a four-year (4) period of ineligibility starting on the date of this Award.

5.) All competitive results obtained by Mr Ibai Salas Zorrozua from the date of 25 January 2017 through to the commencement of his period of ineligibility shall be disqualified, with all of the resulting consequences, including the forfeiture of any medals, points, and prizes.

6.) (…).

7.) (…).

8.) All further or different motions or prayers for relief are dismissed.

On 30 January 2017 the Hearing Panel of the National Anti-Doping Agency Romania (ANAD) decided to impose an 8 year period of ineligibility on the long-distance runner Sorin Mineran for his second anti-doping rule violation after he tested positive for the prohibited substance Higenamine.

However on 16 March 2018 the ANAD Appeal Panel decided to set aside the first instance decision and to acquit the Athlete. Hereafter in November 2019 WADA appealed the Decision of 16 March 2018 with the Court of Arbitration for Sport (CAS).

WADA requested the Panel to set aside the decision of the ANAD Appeal Panel and to sanction the Athlete for his second anti-doping rule violation. Whereas WADA accepted that the violation was not intentional it requested the Panel to impose a 4 year period of ineligibility on the Athlete.

WADA contended that Higenamine is a specific substance prohibited at all times under S3 of the 2016 Prohibited List and that a significant number of Athlete's were sanctioned because of the presence of Higenamine in their samples in 2016.

Refering to the Sakho case, invoked by the Athlete in his defence, WADA points out that the Board in that case did not hear any expert explanation of the bases on which doping authorities have determined that such categorization is justified.

The Athlete did not dispute the test result and denied that he had committed an anti-doping rule violation based asserting that:

• his sanction was precluded by res judicata;
• Higenamine was not on the 2016 Prohibited List, because it was not known to be a Beta-2 agonist; and
• not all WADA-accredited laboratories tested for Higenamine in 2016.

The Panel considered the invoked Sakho case and establish that the UEFA-CEDB decision did not actually find that Higenamine is not a prohibited beta-2 agonist. What the Board wrote was instead that there was "significant doubt" in the matter and that is was "not clear" that Higenamine was a beta-2 agonist.

The Panel holds that the evidence does not show a reluctance of laboratories to test for Higenamine, and to the contrary an expansion of their capability to conduct such testing as the use of that substance has proved to be wide spread.

The Panel accepts WADA's contentions and finds that the Athlete's explanation for his anti-doping rule violation is weak. The Panel deems that Higenamine, although not explicitly named, was present on the 2016 Prohibited List. Furthermore CAS jurisprudence has established and confirmed that a list of prohibited substances need not be exhaustive.

Here the Panel regarded that Higenamine was already listed by name as a prohibited substance on the Global Drug Reference Online in 2013. The substance also had been on the agenda of the WADA List Expert Group meetings serveral times listing Higenamine as a beta-2 agonist.

Therefore the Court of Arbitration for Sport decides on 24 July 2020 as follows:

1. The appeal filed on 5 November 2019 by the World Anti-Doping Agency against the Romanian National Anti-Doping Agency and Sorin Mineran with respect to the decision issued on 11 March 2019 by the Appeal Panel of the Romanian National Anti-Doping Agency is upheld.
2. The decision issued on 11 March 2019 by the Appeal Panel of the Romanian National AntiDoping Agency is set aside.
3. Mr Sorin Mineran is found to have committed an anti-doping rule violation and is therefore sanctioned with a four-year period of ineligibility, commencing on the date of the entry into force of the present award, subject to the proviso that the length of provisional suspension or ineligibility he has already served shall be credited against the total period of ineligibility to be served.
4. The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne 50% by the Romanian National Anti-Doping Agency and 50% by Mr Sorin Mineran.
5. The Romanian National Anti-Doping Agency and Mr Sorin Mineran shall bear their own costs and each is individually ordered to pay to the World Anti-Doping Agency an amount of CHF 2,000 (two thousand Swiss Francs) as a contribution towards WADA's legal fees and other expenses incurred in connection with these arbitration proceedings.
6. All other and further motions or prayers for relief are dismissed.

CAS 2020/A/6781 Andrus Veerpalu v. Fédération Internationale de Ski (FIS)

Related cases:

• CAS 2011_A_2566 Andrus Veerpalu vs International Ski Federation
  March 25, 2013
• CAS 2020_ADD_7 ISF vs Andrus Veerpalu
  March 17, 2021
• FIS 2011 FIS vs Andrus Veerpalu
  August 21, 2011

• Skiing (cross-country skiing)
• Doping (suspected anti-doping rules violation)
• CAS Jurisdiction
• Consequences of a provisional suspension
• Taking into account of irreparable harm in favour of a provisonally suspended athlete

1. The FIS Anti-Doping Rules (ADR) provides for an appeal to the CAS against decisions to impose a provisional suspension. Pursuant to Article R27 of the CAS Code, the parties’ agreement to refer a sports-related dispute to CAS may arise out of an arbitration clause contained in a contract or regulations. Similarly, pursuant to Article R47 of the Code, an appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide. Accordingly, the arbitral clause contained in the FIS ADR is sufficient to confer jurisdiction to the CAS to rule on an appeal. It would run counter to the fundamental aim of avoiding the fragmentation of international sports which aspire to, and indeed require, uniform application of the law, if statutory references to CAS would be binding, but the same would not be the case if CAS is referred to in a “mere” regulation – no matter how clearly spelled out, no matter how well notified to participants in the internationally regulated sport. In any case, a statutory basis for CAS jurisdiction is present as well, in the form of Article 57.4 of the FIS Statutes, which provides that: “Decisions of the Council and the Doping Panel which concern violations of the doping rules may be appealed to the Court of Arbitration for Sport (CAS) within twenty one (21) days”. The jurisdictional foundation of CAS is therefore fully supported by both regulatory and statutory references.

2. Provisional suspensions have the consequence of ineligibility to compete, with the result that the suspended individual is excluded from competitions which will not be repeated. This rule fulfills the goal of protecting participants who are not under the cloud of a “reasonable possibility” of having committed a doping violation. True enough, such is also the effect of definite suspensions. But the latter are established for a fixed period of time, and that makes all the difference; a provisional suspension may be overturned as soon as a CAS panel can reach a decision to that effect. It therefore makes sense that the hurdle to overturning provisional suspensions is higher than that of definite suspensions.

3. The factor of irreparable harm may be taken into account in favor of a provisionally suspended athlete, but the appellant must then demonstrate that the requested measures are necessary in order to protect him from damage or risks that would be impossible, or very difficult, to remedy or cancel at a later stage. The mere allegations of irreparable harm, without corroborating proof, fail to satisfy the appellant’s burden of proof to show substantial damage if the appealed decision is not set aside and if the provisional suspension thus remains.

On 27 February 2019, at the 2019 Nordic World Ski Championships in Seefeld, the Austrian police raided several cross-country athletes on suspicion of violation of the Austrian anti-doping laws. Among them were several members of the privately sponsored “Team Haanja”, a group of athletes and coaches mainly from Estonia, including the Appellant’s son Andreas Veerpalu, Karel Tammjärv and Alexey Poltoranin from Kazakhstan.

“Team Haanja” was completed by further athletes, who later voluntarily confessed blood doping, and Mati Alaver and Andrus Veerpalu as their coaches. The athletes admitted that they had blood taken from their circulatory system and later, immediately before certain competitions, re-injected into their system. Coach Mati Alaver also admitted having been part of the systematic blood doping scheme, which was actually performed by Dr. Mark Schmidt from Erfurt, Germany, and his assistants.

The discovery of the illegal blood doping scheme led to several decisions by Anti-Doping Organizations (ADO), which sanctioned athletes and athlete support personnel from various sports and countries with periods of ineligibility. The FIS Independent Anti-Doping Delegate (IADD) sanctioned four cross-country skiers and coach Mati Alaver with periods of ineligibility of four years.

In addition, the responsible Public Prosecutor in Innsbruck, Austria, has initiated criminal proceedings against a number of Austrian and Estonian cross-country skiers and coaches, including Andrus Veerpalu.

The Appellant was a coach of meanwhile banned Alexey Poltoranin and his son Andreas Veerpalu. On 28 September 2019, the FIS opened a disciplinary case also against the Appellant and imposed a provisional suspension.

In December 2019 Coach Veepalu sought to lift the provisional suspension which FIS rejected on 31 January 2020.

Hereafter in February 2020 the Athlete appealed the FIS decision of 31 January 2020 with the Court of Arbitration for Sport. The CAS Panel rendered a decision without a hearing based on the written submissions of the Parties.

Coach Veepalu disputed the validity of the provisional suspension since the evidence filed by FIS does not demonstrate sufficiently that there is a reasonable possibility that he had committed an anti-doping rule violation.

The Panel concludes that the evidence submitted by FIS demonstrate that the Appellant was aware of the organized blood doping scheme being carried out by persons with whom he was so actively involved. The Panel also dismissed the Appellant’s alternative prayer for relief that impugned measures should be set aside specifically insofar as they affect his three minor children are concerned

Accordingly the Appellant's request to set aside the FIS Decision of 31 January 2020 and to lift the provisional suspension is denied. The alternative prayer for partially lifting the provisional suspension is dismissed as well.

Therefore the Court of Arbitration for Sport rules that:

1. The Court of Arbitration for Sport has jurisdiction to decide the appeal filed by Mr Andrus Veerpalu on 21 February 2020.
2. The appeal filed by Mr Andrus Veerpalu on 21 February 2020 is dismissed.
3. The Resolution issued by the FIS Independent Anti-Doping Delegate on 31 January 2020 is confirmed and the provisional suspension imposed on Andrus Veerpalu on 28 September 2019 is upheld.
4. (…).
5. (…).
6. All other and further motions or prayers for relief are dismissed.

CAS 2020/ADD/8 International Olympic Committee (IOC) v. Martina Ratej

• Athletics (javelin)
• Doping (clostebol)
• Establishment of the violation of the anti-doping rule
  Sanction

1. Pursuant to Article 2.1.2. of the World Anti-Doping Code (WADC), sufficient proof of an anti-doping violation under Article 2.1. of WADC is established by the presence of a Prohibited Substance or its metabolites in the A Sample “where the Athlete waives analysis of the B Sample and the B Sample is not analysed…”. The mitigating circumstances invoked by the athlete in defense of her adverse analytical finding are not relevant to establish whether an anti-doping rule violation (ADRV) was committed. Indeed, according to the WADC, an athlete’s fault or negligence are elements taken into consideration in determining the consequences of an ADRV, not the commitment of the violation itself.

2. Under Article 7.1 of the IOC Anti-Doping Rules applicable to the 2012 London Olympics (ADR), a violation in individual sports in connection with doping control automatically leads to disqualification of the athlete’s results in the competition in question, with all other consequences related thereto as applicable including forfeiture of any medals, points and/or prizes. The sanctioning system provided for by the IOC ADR – once an ADRV has been established – prevents CAS panel from considering mitigating circumstances. Pursuant to the IOC ADR, without delegation of its powers to the CAS ADD to conduct further anti-doping proceedings and impose applicable sanctions, the CAS ADD does not have jurisdiction to hear any aspect related to sanctions over and above those relating to the Olympic Games. This aspect of the procedure is in the exclusive jurisdiction of the International Federation.

Ms Martina Ratej is a Slovenian Athlete competing in the Women’s Javelin throw event at the London 2012 Olympic Games. 

In 2018, the International Olympic Committee (IOC) decided to perform further analyses on certain samples collected during the 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2012. 

In January 2020 the International Testing Agency (ITA), on behalf of the IOC, reported an anti-doping rule violation against the Athlete after her 2012 sample tested positive for the prohibited substance Clostebol. 

Hereafter in May 2020 the International Olympic Committee (IOC) filed a request for Arbitration with the Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD) as first-instance authority. The Sole Arbitrator renders a decision without a hearing based on the Parties' written submissions. 

The Athlete accepted the test result and denied the intentional use of the substance. She explained that she underwent treatment for a medical urgency and that the prescribed medication Trofodermin Creme, containing Clostebol, was the source of the positive test.

She asserted that she was tested before without issues and after medical treatment the Slovenian Anti-Doping Organization deemed that she did not need a TUE.  

The IOC contended that the presence of the prohibited substance had been established in the Athlete's sample and accordingly that she had committed an anti-doping rule violation. 

The Sole Arbitrator concludes that there is sufficient proof that the Athlete committed an anti-doping rule violation. Any mitigating circumstanced invoked by the Athlete in his defence, even if proven, are not relevant to establish whether an anti-doping rule violation was committed. The Sole Arbitrator deems that the Athlete may have an opportunity to explain the circumstances at a later stage of the prosecution of the anti-doping rule violation. 

Therefore the Court of Arbitration for Sport decides on 16 July 2020 that:

1. The request for arbitration filed by the International Olympic Committee on 6 May 2020 against Ms. Martina Ratej is upheld.
2. Ms. Martina Ratej committed an anti-doping rule violation in accordance with the International Olympic Committee’s Anti-Doping Rules applicable to the XXX Olympiad, London 2012.
3. The results obtained by Ms. Martina Ratej at the XXX Olympiad, London 2012 are disqualified with all resulting consequences including, if applicable, forfeiture of any medal, points and prizes.
4. (…).
5. (…).
6. All other motions or prayers for relief are dismissed.

• CAS 2019/A/6443 Canadian Centre for Ethics in Sport (CCES) v. Dominika Jamnicky
• CAS 2019/A/6593 Dominika Jamnicky v. Canadian Centre for Ethics in Sport (CCES)

Related cases:

• SDRCC 2018 CCES vs Dominika Jamnicky & Triathlon Canada - Final Award
  August 16, 2019
• SDRCC 2018 CCES vs Dominika Jamnicky & Triathlon Canada - Partial Award
  May 31, 2019

In May 2018 the Canadian Centre for Ethics in Sport (CCES) has reported an anti-doping rule violation against the Triathlon Athlete Dominika Jamnicky after her sample tested positive for the prohibited substance Clostebol allegedly as a result of her use of a contaminated product. 

In two Awards rendered by the SDRCC Doping Tribunal on 31 May 2019 and on 16 August 2019 the Arbitrator deemed that the Athlete failed to establish the source of the anti-doping rule violation. However she determinded that the violation was not intentional and although she committed an anti-doping rule violation only a reprimand was imposed on the Athlete. 

Hereafter in September 2019 the CCES and the Athlete in October 2019 appealed the SDRCC decision of 16 August 2019 with the Court of Arbitration for Sport (CAS).

The CCES requested the Panel to set aside the SDRCC decision and to impose a 2 year period of ineligibility on the Athlete. It did not dispute that the violation was not intentional but contended that there were no grounds to impose a reduced sanction based on the principle of proportionality.

CCES contended that the Athlete’s evidence in support of her Meat Contamination theory clearly was insufficient to meet te required standard of proof. It regarded it extremely unlikely that the positive test was the result of contaminated meat in Australia or Canada. She failed to investigate her theory of meat contamination nor did she identify all possible sources of Clostebol. 

The Athlete requested the Panel to dismiss the CCES appeal and to set aside the SDRCC Decision of 6 August 2019. She asserted that the source of the positive test was contamined meat; she bears No Fault; alternative she bears No Significant Fault; or the imposition of a reprimand should be confirmed. She testified that she was in Australia and in Canada in April 2018 and there she had consumed a number of animal food products that possible illegally was treated with Clostebol.

Supported by expert witnesses and with circumstancial evidence the Athlete demonstrated that Clostebol is a well-known and effective growth promoter for animal food products while the monitoring authorities for domestic and imported livestock products in both Australia and Canada do not test for Clostebol, creating incentives for producers who might wish to enhance production without fear of being caught.

She excluded the possibility of supplement contamination since she was tested before without issues and she handled and checked with utmost care her supplements before using. 

The Panel considers that the Athlete had accepted the test result and that the CCES had accepted that the violation was not intentional. After having more closely examined the entirety of the evidence in respect of the Meat Contamination, and when combined with other inferences made, the Panel is unanimously of the view that the Meat Contamination is the only reasonably possible and credible explanation for the Athlete’s positive test and is more likely than not to have occurred. 

In reaching this conclusion the Panel deems that it applied the rules and standards that govern triers of fact in assessing circumstantial evidence. In weighing both the inferences to be drawn and the weight of all of the inferences when balanced together, it is satisfied that their conclusion meets the standard of being logical "in light of human experience and common sense".

The Panel holds that the Athlete has established on a balance of probability how Clostebol entered her system, that she bears No Fault in relation to her anti-doping rule violation and that the otherwise applicable 2 year sanction is eliminated. 

Therefore the Court of Arbitration for Sport decides on 9 July 2020 that: 

1.) The (a) appeal filed by the Canadian Centre for Ethics in Sport against Ms. Dominika Jamnicky and (b) cross-appeal filed by Ms. Dominika Jamnicky against the Canadian Centre for Ethics in Sport concerning the decision rendered by the doping tribunal of the Sport Dispute Resolution Centre of Canada on 16 August 2019 are partially upheld.

2.) The decision dated 16 August 2019 by the doping tribunal constituted and administered by the Sport Dispute Resolution Centre of Canada on 16 August 2019 is set aside.

3.) Ms. Dominika Jamnicky is found to have committed an Anti-Doping Rule Violation but bears no fault or negligence and no period of ineligibility shall be imposed on her.

4.) All other prayers for relief in the Appeal and the Cross-Appeal are denied.

5.) (…).

6.) (…).

On 15 November 2019 the Disciplinary Commission of the Panam Sports Organisation (PASO) concluded that the cyclist Njisane Phillip from Trinidad and Tobago had committed an anti-doping rule violation after his A and B samples tested positive for the prohibited substance Cannabis in a concentation above the WADA threshold (193ng/mL).

Consequently the PASO Disciplinary Commission decided to disqualify the results and medals of the Athlete and his team of Trinidad & Tobago during the Lima 2019 Pan American Games. 

Hereafter in November 2019 the Athlete appealed the PASO decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the PASO decision of 15 November 2019 and to order that the gold and silver medals won by the Athlete to remain with him. 

The Athlete argued that PASO’s breach of applicable procedural rules and regulations regarding the following aspects of its results management, disciplinary process and public reporting regarding his violation are so egregious that the Panel should invalidate the Disciplinary Commission Decision in its entirety and restore his cycling competition results in the 2019 Panam Games and medals won:

1. composition of its Doping Review Panel;
2. structure and contents of the Disciplinary Commission Decision; and
3. breach of confidentiality by public reporting of its decision to disqualify the Athlete’s competition results before final resolution of this appeal procedure.

The Athlete admitted the violation and did not dispute that it automatically leads to disqualification of the obtained results. He asserted that there is no evidence that he had used Cannabis to enhance his performance or that it positively impacted his performance. Fairness requires that a lesser penalty would be imposed without consequences for the other athletes in the cycling team of Trinidad & Tobago. 

The Panel finds that no material procedural defects occurred in connection with the structure or contents of the Disciplinary Commission Decision nor the composition of the Doping Review Panel. It recognizes that any procedural defects in either internal process alleged by the Athlete regarding his anti-doping rule violation will be effectively remedied by its de novo review in accordance with Article R57 of the CAS Code. 

The Panel deem that PASO indeed violated the confidentiality requirements as stipulated in the PASO ADR and the ISPPI by public dislosing the Athlete's anti-doping rule violation and disqualification of results after his appeal was filed with CAS in November 2019 and pending before the Panel.

While the PASO’s actions in prematurely reporting the Athlete’s disqualification for his admitted anti-doping rule violation were erroneous, they cannot be remedied by invalidating the entire anti-doping rule violation. 

The Panel concludes that under the applicable Rules the PASO Disciplinary Commission appropriately disqualified the Athlete’s individual results and the Trinidad & Tobago cycling team’s results in the 1 August 2019 team sprint cycling competition as result of the committed anti-doping rule violation. 

Therefore the Court of Arbitration for Sport decides on 8 July 2020 that: 

1.) The appeal filed by Mr. Njisane Phillip on 28 November 2019 against the decision rendered by the Panam Sports Disciplinary Commission on 15 November 2019 is dismissed.

2.) The Award is pronounced without costs, except for the Court Office fee of CHF 1000 (one thousand Swiss Francs) paid by the Appellant, which is retained by the CAS.

3.) (…).

4.) All other motions or prayers for relief are dismissed.

CAS 2019/A/6319 Maria Guadalupe Gonzalez Romero v. IAAF

CAS 2019/A/6319 María Guadalupe González Romero v. International Association of Athletics Federations (IAAF)

Related cases:

• IAAF 2018 IAAF vs María Guadalupe González Romero
  May 9, 2019
• World Athletics 2020 WA vs Maria Guadalupe González Romero
  July 30, 2021
• CAS 2021_A_8311 María Guadalupe González Romero vs IAAF
  December 29, 2023
  
  

• Athletics (race-walking)
• Doping (epitrenbolone)
• Consequences of signing a DCF
• Lack of conflict of interest in a situation where the DCO and the chaperone are married
• Invalidation of an AAF and balance of interest
• Evidence of lack of intent

1. By signing a Doping Control Form, an athlete is estopped from claiming violation of the International Standard for Testing and Investigations (ISTI) at a later stage, short of evidence of manipulation of the records, or fraud, or any similar fact.

2. As long as they both are independent from the athlete, a Doping Control Officer and a chaperone have no specific interest in the outcome of the sample collection and there is no conflict of interest nor any risk of conflict of interest established arising solely from the fact that they are married.

3. Only significant departures from the ISTI, such as the violation of the athlete’s right to attend the opening and analysis of his/her B-sample, warrant invalidation of an adverse analytical finding (AAF) for procedural irregularity. There must be an appropriate balance between the rights of the athletes to have their samples collected and tested in accordance with the mandatory testing standards, and the legitimate interest in preventing athletes from escaping punishment for doping violations on the basis of inconsequential or minor technical infractions of the ISTI.

4. In order to demonstrate that the anti-doping rule violation was not intentional, the athlete must demonstrate how the substance entered his/her body, on the basis of the “balance of probability” standard. Mere allegation that the AAF was the result of the ingestion of contaminated meat is insufficient. The athlete must provide actual evidence as opposed to mere speculation.

On 9 May 2019 the IAAF Disciplinary Tribunal decided to impose a 4 year period of ineligibility on the Mexican Athlete María Guadalupe González Romero after her A and B samples tested positive for the prohibited substance Trenbolone.

In First Instance the Sole Arbitrator deemed that the explanation together with the evidence produced by the Athlete were not convincing, contradicting and not reliable. Consequently her explanation was rejected for lack of credibility due to she failed to establish that her violation was not intentional. 

Hereafter in June 2019 the Athlete appealed the IAAF decision with the Court of Arbitration for Sport (CAS). The Athlete requested to set aside the IAAF decision and to impose a reduced sanction on the basis of No Fault or Negligence or No Significant Fault or Negligence. 

The Athlete denied the intentional use of Trenbolone and asserted that her consumption of Mexican contaminated meat was the source of the positive test. In addition the Athlete claimed that during the sample collection in question irregularities occurred that would invalidate the test results.

The Athlete admitted freely before the Panel, and in her Appeal Brief, that she had not told the truth at the hearing in first instance before the IAAF Disciplinary Tribunal, that her evidence had been falsified, and that documents and evidence were fabricated. The Appellant apologised for her conduct and for what she had said and done before the IAAF Disciplinary Tribunal, but said that she was following advice of her then-legal team. 

The IAAF contended the Athlete’s assertions regarding the alleged departures of the ISTI lacks any credibility since she produced contradictory set of facts regarding her consumption of contaminated meat. The Athlete failed to establish that the violation was not intentional nor how the prohibited substance entered her system. 

The Panel dismissed the Athlete’s claim regarding the alleged departures of the ISTI since it is not convinced by the Athlete's submission that any irregularity, be it ever so minor, should invalidate a positive test result. Neither that the alleged procedural irregularities (which the Panel does not accept) in the present matter are so fundamental that they should invalidate the positive test result. 

Because the Athlete acknowledged that she gave false evidence and that fabricated evidence and documents were produced at the first instance she now relies on a polygraph test, commonly known as "lie detector test", that she had taken prior to this hearing. In this case the Panel does not accept that such test is reliable to establish the truthfulness of the Athlete's latest version of the facts. Even if such a test were admissible, the Panel is of the view that in this case it would not assist the Athlete to overcome the requisite burden of proof to establish how the Trenbolone was in her body. 

The Panel finds that the Athlete did not demonstrate, on the balance of probabilities, how the substance entered her body nor otherwise demonstrate that she acted unintentionally. As a result, the conclusion must be that the Anit-Doping Rule Violation was intentional. 

Therefore the Court of Arbitration for Sport decides on 2 July 2020 that: 

1.) The appeal of Maria Guadalupe Gonzalez Romero is dismissed.

2.) The decision rendered by the International Association of Athletics Federations Disciplinary Tribunal on 9 May 2019 is confirmed.

3.) The award is pronounced without costs, except for the Court Office fee of CHF 1,000 ( one thousand Swiss Francs) paid by the Appellant, which is retained by the Court of Arbitration for Sport.

4.) Maria Guadalupe Gonzalez Romero shall pay to the International Association of Athletics Federations a contribution in the amount of CHF 2,000 toward its legal fees and expenses incurred in connection with the present proceedings.

5.) All other motions or prayers for relief are dismissed.

CAS 2018/O/5754 Sergey Fedorovtsev v. Russian Anti-Doping Agency (RUSADA), World Anti-Doping Agency (WADA) & Fédération Internationale des Sociétés d’Avirons (FISA)

Related case:

Swiss Federal Court 4A_422_2019 Sergey Fedorovtsev vs RUSADA, WADA & FISA
April 21, 2020

• Rowing
  
• Doping (trimetazidine)
  
• Establishment of absence of intent in case of failure to establish source of prohibited substance
  
• Prerequisites to disprove intent
  
• Challenge of a B sample analysis completed in absence of the athlete

1. The establishment of the source of the prohibited substance in an athlete’s sample is not a sine qua non of proof of absence of intent. Indeed, the provisions of the Anti-Doping Rules concerning “intent” do not refer to any need to establish source, in direct contrast to Article 10.5 Russian Anti-Doping rules, combined with the definitions of “No Fault or Negligence” and “No Significant Fault or Negligence”, which expressly and specifically require establishment of source. However, in order to prove, by a balance of probability, that he did not engage in a conduct which he knew constituted an anti-doping rule violation or knew that there was a significant risk that said conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk, an athlete cannot simply assert his lack of intent without giving any convincing explanations to justify such assertion. Rather, to prove the same without proof of source is exceptional. An athlete, even though not bound to prove the source of the prohibited substance, has to show, on the basis of the objective circumstances of the anti-doping rule violation and his behaviour that specific circumstances exist disproving his intent to dope.

2. In order to disprove intent, an athlete cannot merely speculate as to the possible existence of a number of conceivable explanations for the adverse analytical finding (“AAF”) and then further speculate as to which appears the most likely of those possibilities to conclude that such possibility excludes intent: a protestation of innocence, the lack of sporting incentive to dope, or mere speculation by an athlete as to what may have happened does not satisfy the required standard of proof (balance of probability) and the mere allegation of a possible occurrence of a fact cannot amount to a demonstration that fact did actually occur. Instead, an athlete has a stringent obligation to offer persuasive evidence that the explanation he offers for an AAF is more likely than not to be correct, by providing specific, objective and persuasive evidence of his submissions.

3. An athlete who allowed the B sample analysis to proceed in his absence, cannot, following completion of the B sample analysis, belatedly challenge the analytical process and claim that his rights have been breached.

In June 2016 an anti-doping rule violation was reported against the Russian rower Sergey Fedorvtsev after his A and B samples tested positive for the prohibited substance Trimetazidine. After notification a provisional suspension was ordered. Here the opening and analysis of the Athlete’s B-sample in the Lausanne Laboratory occurred in the presence of the Athlete and 2 representatives. 

In May 2018 the case was referred to the Court of Arbitration for Sport (CAS) for a first instance hearing panel. 

The Athlete denied the intentional use of the substance and asserted that the positive test results reported by the Lausanne Laboratory cannot be taken as a basis to establish that he committed the antidoping rule violation. Should the existence of an antidoping rule violation be established, this should be considered “not intentional” and the sanction should not exceed a period of ineligibility of two years.

He asserted that the B sample results must be discarded because his fundamental right to attend the B sample opening and analysis was breached, or in the alternative that the reason of the positive test would be the ingestion of a contaminated product. 

Both RUSADA and WADA requested the Panel to find that the Athlete committed an antidoping rule violation and that such violation was “intentional”, and therefore to impose on the Athlete a sanction of 4 years of ineligibility and to disqualify all the Athlete’s results following the doping test of 17 May 2016.

RUSADA and WADA contended that the Athlete failed to explain how the prohibited substance entered his system nor the origin of the Substance. They refuted in detail the issues raised by the Athlete effecting the establishment of an anti-doping rule violation. WADA considered these issues as attempts made by the Athlete to invalidate the positive test result or to mitigate its consequences. 

Based on the evidence in this case the Panel dismiss the Athlete’s contentions and it confirms that the A and B sample analyses show the presence of a prohibited substance while there is no basis to disregard such analytical results. The Panel finds that the Athlete has not discharged the burden which lies upon him to establish by a balance of probability non-intentional use of a prohibited substance. 

Therefore the Court of Arbitration for Sport decides on 26 June 2019 that: 

1.) Mr Sergey Fedorovtsev is responsible for the antidoping rule violation contemplated by Article 2.1(c) [“Presence of a Prohibited Substance or its Metabolites or Markers in a Athlete’s sample”] of the Russian antidoping rules, including the Anti-Doping rules approved by the order No 947 of the Ministry of Sport of the Russian Federation of 9 August 2016.

2.) Mr Sergey Fedorovtsev is declared ineligible for a period of four (4) years from 16 June 2016, the date of his provisional suspension. All competitive results obtained by Mr Sergey Fedorovtsev between 17 May 2016 and 16 June 2016 are disqualified, with all of the resulting consequences, including forfeiture of any medals, points and prizes.

(…)

5.) All other motions or prayers for relief are dismissed.