CAS 2019/A/6292 Asbel Kiprop v. International Association of Athletics Federations (IAAF)

Related case:

IAAF 2018 IAAF vs Asbel Kiprop
April 10, 2019

On 10 April 2019 the IAAF Disciplinary Tribunal decided to impose a 4 year period of ineligibility on the Kenyan Athlete Asbel Kiprop after his A and B samples tested positive for the prohibited substance Erythropoietin (EPO).

In first instance the Athlete's explanations for the positive test results were rejected. Also the Panel dismissed the applications filed by the Athlete in his defence.

Hereafter the Athlete appealed the IAAF Decision with the Court of Arbitration for Sport (CAS). Thereupon the Athlete requested repeatedly to suspend the proceedings or to extend the set deadlines.

Ultimately in July 2019 the President of the CAS Appeals Arbitration Division established that the Athlete had failed to file timely his Appeal Brief before the deadline had lapsed.

Therefore on 23 June 2020 the  President of the Appeals Arbitration Division of the Court of Arbitration for Sport, rules in camera, pronounces:

1.) The procedure CAS 2019/A/6292 Asbel Kiprop v. International Association of Athletics Federations (IAAF) is terminated and removed from the CAS roll.

2.) This Order is rendered without costs, except for the Court Office fee of CHF 1,000 paid by Mr. Asbel Kiprop, which is retained by the Court of Arbitration for Sport.

CAS 2019/O/6156 International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (RUSAF) & Aleksandr Shustov

On 16 July 2016, Professor Richard McLaren (the Independent Person or the IP) issued a first report on the allegations of systemic doping in Russia. Some of the key findings of the First IP Report were that:

1.) the Moscow Laboratory operated, for the protection of doped Russian athletes, within a state-dictated failsafe system, described in the First IP Report as the disappearing positive methodology (DPM) and

2.) the Ministry of Sport of the Russian Federation directed, controlled, and oversaw the manipulation of athletes' analytical results or sample swapping, with the active participation and assistance of the Russian Federal Security Service, the Center of Sports Preparation of National Teams of Russia, and both Moscow and Sochi Laboratories.

On 9 December 2016, the IP elaborated on the First IP Report and released a second report on the doping allegations in Russia, together with the First IP Report. The Second IP Report confirmed the key findings of the First IP Report and described in detail the DPM and the Washout Testing.

Within the context of the Second IP Report, the IP identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered. The IP made publicly available on the IP Evidence Disclosure Package (EDP) website the evidence of the involvement of the Identified Athletes. According to the IP and the IAAF, the evidence on the EDP was retrieved from the hard-drive of Dr Rodchenkov and, after the metadata of all the documents was examined, the documents were determined to have been made contemporaneously to the events.

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Mr. Aleksandr Shustov is a Russian high jumper competing in the Moscow 2013 IAAF World Championships.

In November 2017 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Russian Athlete based on the findings of the First and Second IP Report and the disclosed evidence.
After deliberations between the parties the case was referred to the Court of Arbitration for Sport (CAS) in February 2019 for a Sole Arbitrator first instance hearing panel.

The IAAF requested the Panel to impose a 4 year period of ineligibility on the Athlete due to aggravating circumstances and for the disqualification of the Athlete’s results from 8 July 2013 until the date of the decision in this case.

The IAAF contended that the Athlete had used anabolic steroids in the lead-up to the Moscow 2013 IAAF World Championships based on the findings of the Second IP Report and the disclosed evidence (the Moscow Washout Schedules). Here 3 official samples, provided by the Athlete, were reported as negative in ADAMS in 2013 by the Moscow Laboratory while the evidence showed that these samples contained prohibited substances.

In addition 2 unofficial samples were listed in the Moscow Washout Schedules in 2013 containing prohibited substances. Furthermore one of the Athlete’s B sample bottles had multiple T marks as evidence of tampering.

The Athlete challenged the Sole Arbitrator, denied the use of prohibited substances and disputed the reliability of the filed evidence in this case provided by the IAAF, Professor McLaren and Dr Rodchenkov. Sustained by expert witnesses, he pointed to various inconsistencies in this evidence.

The Sole Arbitrator concludes that the Athlete is present in the Moscow Washout Schedules in respect of the 5 samples listed as belonging to the Athlete. Here the Athlete’s presence in the Moscow Washout Schedules are strong indication that the Athlete used the prohibited substances Methandrostenolone (Metandienone) and Methasterone in 2013 as corroborated by the evidence.

The Sole Arbitrator finds that the Athlete's repeated denials and challenges were exposed as empty and his attempts at alternative scientific explanations for the facts were comprehensively refuted.

Accordingly the Sole Arbitrator finds that the IAAF has proven to his comfortable satisfaction that the Athlete violated the IAAF Rules through the use of multiple prohibited substances on multiple occasions. Considering the seriousness of the Athlete's violations and the fact that many aggravating factors are relevant in this case, the Sole Arbitrator finds that a 4 year period of ineligibility is appropriate. Finally the Sole Arbitrator deems it appropriate to disqualify the Athlete's results from 8 July 2013 until 7 July 2017.

Therefore the Court of Arbitration for Sport decides on 5 June 2020 that:

1.) CAS has jurisdiction to decide on the subject matter of this dispute and the Request for Arbitration of the International Association of Athletics Federations is admissible and is upheld.

2.) Aleksandr Shustov is found guilty of anti-doping rule violations under Rule 32.2(b) of the IAAF Rules.

3.) A period of ineligibility of four ( 4) years is imposed upon Aleksandr Shustov, commencing on the date of this A ward.

4.) All competitive results obtained by Aleksandr Shustov from 8 July 2013 to 7 July 2017 are disqualified, with all resulting consequences (including forfeiture of any titles, awards, medals, profits, prizes and appearance money).

5.) The arbitration costs (to be determined and notified by the CAS Court Office) shall be paid by the Russian Athletic Federation.

6.) The Russian Athletic Federation shall contribute the sum of CHF 2,500 (two thousand five hundred Swiss Francs) to the International Association of Athletics Federations' fees and expenses.

7.) Aleksandr Shustov shall contribute the sum of CHF 2,500 (two thousand five hundred Swiss Francs) to the International Association of Athletics Federations' fees and expenses.

8.) All other and further prayers or requests for relief are dismissed.

CAS 2018/A/6047 Russian Anti-Doping Agency (RUSADA) v. Andrei Valerievich Eremenko

• Athletics
• Doping (tampering/attempted tampering and complicity of coach)
• Offer of a bribe
• Sanction

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1. Offering a bribe to a Doping Control Officer for the replacement of a sample is an attempt to interfere with the doping control, in accordance with Article 2.5 of the All Russian Anti-Doping Rules (ADR). It is also a form of complicity in accordance with Article 2.9 of the ADR.

2. According to Article 10.3.1 of the ADR, the sanction for attempted tampering is a period of ineligibility of four years. The additional finding of complicity does not add to this.

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Mr. Andrei Valerievich Eremenko is a Russian Track and Field coach and has been coaching the Athlete Yulia Viktorovna Malueva since she was 10 years old.

After an attempted Doping Control in Camp Adler, City of Sochi, Russia on 2 September 2017 by a number of Doping Control Officers (DCO) the Russian Anti-Doping Agency (RUSADA) reported an anti-doping rule violation against the Athlete Yulia Viktorovna Malueva for deliberate evading from submitting to doping control and producting a sample.

After the failed sample collection on 2 September 2017 the DCOs reported that during the doping control the Athlete Malueva could not provide a sample for hours while she was continuously texting with her phone. After lunch she complained about nausea and headache and attempted vomiting. When she ultimately produced a sample she fell on the floor and the bottle with urine was dropped into the toilet. The Athlete ‘fainted’ and asked for medical treatment. In the hospital the Athlete was several times requested by the DCO to provide a sample but she indicated that she was not able to produce a sample. In the evening the DCOs stopped their attempt to collect a sample in the hospital and returned to the Doping Control Station.

RUSADA in addition reported an anti-doping rule violation against coach Eremenko for Tampering or Attempted Tampering and/or Complicity during the Doping Control on 2 September 2017. Here the DCOs reported and testified that coach Eremenko wanted to prevent that the DCO Ms Meshkova should accompany the Athlete in the ambulance to the hospital. Further coach Eremenko had offered a financial inducement to the DCO Mr Mareichev to subvert the doping control process.

The cases against the Athlete Malueva and against coach Eremenko were heard and determinded by the Russian Disciplinary Anti-Doping Commission (DADC). On 12 April 2018 the DADC decided to impose a 4 year period of ineligibility on the Athlete Malueva. However the DADC ruled that there was insufficient evidence against coach Eremenko and so the DADC decided on 12 April 2018 to acquit him.

Hereafter in December 2018 RUSADA appealed the DADC decision with the Court of Arbitration for Sport (CAS). RUSADA requested the Panel to set aside the DADC decision of 12 April 2018 and to impose a sanction in accordance with the ADR.

RUSADA contended that there there was written witness statements that coach Eremenko had attempted to bribe DCO Mr Mareichev to act in a fraudulent manner, which would have been to submit for analysis an urine sample that purported to be that of Ms Malueva but in fact would not have been hers. This allegation is corroborated by the testimonies of two other DCOs and WhatsApp messages of the DCOs about this incident. Also there are written witness statements of the DCOs that coach Eremenko wanted to prevent DCO Ms Meshkova to accompany the Athlete in the ambulance to the hospital.

Coach Eremenko denied the allegations and asserted that RUSADA failed to demonstrate that he had bribed DCO Mr Mareichev and intentionally had counselled and encouraged the Athlete to feigh and exaggerate the extend of her illness in an effort to avoid having to provide a urine sample. He disputed the written witness statements of the DCOs and produced several reasons why these allegations should not be given any weight.

The Sole Arbitrator considers whether the RUSADA has established to her comfortable satisfaction that coach Eremenko has committed an anti-doping rule violation by Tampering or Attempted Tampering and/or Complicity. Given especially the seriousness of the allegation of offering a bribe to a DCO the Arbitrator thoroughly scrutinized the Parties' submissions, the evidence provided and above all the testimonies of the witnesses.

The Sole Arbitrator deems that during the hearing coach Eremenko not only was inconsistent in his account of the events on 2 September 2017 but again and again attacked the DCO. His behavior was regarded extreme and he never gave the impression of an innocent man fighting a wrong accusation. Furthermore the testimony of the Athlete did not support the coach his submission, she made contradictory statements and could not be seen as a reliable witness.

Finally the Sole Arbitrator has no reasonable doubt that coach Eremenko on 2 September 2017 made an attempt to bribe DCO Mr Mareichev in order to prevent an authentic urine sample being collected from the Athlete. To the comfortable satisfaction of the Sole Arbitrator RUSADA demonstrated coach Eremenko his complicity in the Athlete Malueva avoiding the anti-doping test.

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

1.) The appeal filed on 6 December 2019 by Association Russian Anti-Doping Agency against Mr Andrei Valerievich Eremenko is upheld.
2.) The Decision No 77/2018 rendered by the Disciplinary Anti-Doping Commission in Russia on 12 April 2018 is set aside.
3.) Mr Andrei Valerievich Eremenko has committed an Anti-Doping Rule Violation and is sanctioned with a period of four (4) years of ineligibility starting with the date of this decision.
4.) The costs of the present arbitration, to be determined and served to the Parties by the CAS Court Office, shall be borne by Mr Andrei Valerievich Ermenko.
5.) Mr Andrei Valerievich Eremenko is ordered to pay 3,000 CHF (three thousand Swiss Francs) as a contribution towards the legal fees and other expenses incurred by Association Russian Anti-Doping Agency in the present proceedings.
6.) All other motions and prayers for relief are dismissed.

CAS 2019/A/6180 World Anti-Doping Agency (WADA) v. United States Anti-Doping Agency (USADA) and Ryan Hudson - Preliminary Award

Related case:

CAS 2019_A_6180 WADA vs USADA & Ryan Hudson - Settlement
October 23, 2020

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Previously in December 2016 the American weightlifter Ryan Hudson was sanctioned with a 4 year period of ineligibility after he tested positive in 2015 for the prohibited substance Stanozolol. 

In July 2017 the United States Anti-Doping Agency (USADA) reported an new anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance Dehydrochlormethyltestosterone (DHCMT).

Here USADA deemed on 27 November 2018 that there where grounds for the imposition of a sanction of 4 years for the Athlete’s second anti-doping rule violation instead of the otherwise applicable 8 year period of ineligibility. 

Hereafter in March 2019 the World Anti-Doping Agency appealed the USADA Decision with the Court of Arbitration for Sport (CAS).

This Award centres around these preliminairy issues: 

• whether the CAS has jurisdiction over the appeal;
• if the CAS does have jurisdiction, what is the scope of the appeal, i.e. does it extend to whether the Athlete committed a second ADRV or is it limited to the sanction for such violation; and
• whether a "presence" violation is committed (for the purposes of Article 10.7.4.1 of the WADC) on the date of ingestion of a prohibited substance or on the date of the doping control test.

WADA's essential submission is that:

• The issue of whether the Athlete committed a second ADRV has been already determined;

• WADA's prayer for relief that the CAS find the Athlete has committed a second ADRV, is a mere formality.

USADA's essential submission is that:

• It is for WADA to establish that the Athlete committed a second ADRV before any question of sanction can arise;
• WADA's prayers for relief that the CAS find the Athlete has committed a second ADRV, has made whether he has done so an issue in these proceedings.

Considering the submissions of the parties the Sole Arbitrator holds that there is a specific arbitration agreement in the Appealed Decision entitling WADA to appeal it to the CAS. Moreover, an applicable regulation – the USADA Protocol – properly interpreted, also provides such a right of appeal to WADA. 

The Sole Arbitrator deems that USADA's attempt to change the basis of the agreed sanction i.e. that the DHCMT positive should be treated as a second ADRV - should not be entertained. The fact of the Athlete's second ADRV is the very premise of WADA's appeal and hence outwith its scope. The scope of WADA's appeal is limited to the appropriate sanction for the Athlete's second ADRV; his commission of that second violation is to be treated as res judicata. 

Further the Sole Arbitrator concludes that an ADRV contrary to Article 2.1 WADC (i.e. a "presence" violation) cannot be committed on any date other than the date of the sample on which the prohibited sample is found to be present. 

Therefore the Court of Arbitration for Sport decides on 10 March 2020 in this Preliminary Award that: 

1.) The Court of Arbitration for Sport has jurisdiction over the appeal filed by the World Anti-Doping Agency on 4 March 2019 against the decision rendered by the United States Anti-Doping Agency on 27 November 2018, regarding Ryan Hudson.

2.) The scope of the appeal filed by the World Anti-Doping Agency on 4 March 2019 is limited to the appropriate sanction for Ryan Hudson's second Anti-Doping Rule Violation; his commission of that second violation is to be treated as res judicata.

3.) An Anti-Doping Rule Violation contrary to Article 2.1 (i.e. a "presence" violation) of the World Anti-Doping Code cannot be committed on any date other than the date of the collection of the sample in which the prohibited substance is found to be present.

4.) The substantive proceedings will now go forward in the basis of the above premises 1-3.

5.) The costs of this award will be allocated in the final award.

6.) All other claims or issues will be assessed and determined in the final award.

• CAS 2018/A/5885 Scott Salmond v. International Ice Hockey Federation (IIHF) &
• CAS 2018/A/5936 World Anti-Doping Agency (WADA) v. IIHF & Scott Salmond
  
  

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• Ice Hockey
• Doping (complicity)
• Comfortable satisfaction
• Departures from the ISTI
• Identification of the DCO
• Notification of potential consequences for failing to provide a sample
• Right of a coach or employee of a national federation to participate in the doping control process
• Departures from the RMHD Guidelines and DCO Tool Kit Manual
• Intent in the context of complicity
• Requirement of an underlying ADRV in the context of complicity
• Minimum sanction

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1. The “comfortable satisfaction” standard of proof is higher than a mere balance of probabilities. The test of comfortable satisfaction must take into account all the circumstances of the case. Those circumstances include the paramount importance of fighting corruption of any kind in sport and also considering the nature and restricted powers of the investigation authorities of the governing bodies of sport as compared to national formal interrogation authorities.

2. The existence of certain standards as detailed in the International Standard for Testing and Investigations (ISTI) and anti-doping rules is considered to be fundamental and central to ensuring integrity in the administration of sample collection such that certain departures therefrom could result in the automatic invalidation of an anti-doping rule violation (ADRV). To demonstrate such departure, the consideration of the evidence presented by the parties concerning the circumstances of the doping control would have to show that violations of mandatory requirements, if any, could have reasonably caused the ADRV.

3. A Doping Control Officer (DCO) will have satisfied the requirements regarding identification under the ISTI by carrying an authorization letter from the testing authority as well as an identification which includes his/her name, photograph, and the expiry date of the identification. The Letter of Authorization is a document used to show that the sample collection personnel has the authority to collect the sample. There is no specific rule that requires mandatorily the presentation of a paper identification and a contrario that forbids electronic identification (a modern form of ID increasingly used in other contexts). Consequently, an electronic identification is satisfactory for the purposes of identification under the ISTI.

4. In accordance with Article 5.4.1 (e)(iii) of the ISTI, the athlete should be advised of the possible consequences of failure to comply. On the plain reading of this provision, there is no reference to providing such a warning to a coach or other employee of the national federation. Moreover, the word “should” implies some form of recommendation or guideline and therefore does not impose an obligation. “Should” does not read as a “must”.

5. The ISTI does not give any right to a coach or employee of a national federation to participate in the doping control process.

6. The Results Management, Hearings and Decisions (RMHD) Guidelines and the Doping Control Officer’s Training Tool Kit Manual contain guidelines, not requirements. These guidelines contain guidance as to how best to comply with the mandatory requirements in the ISTI or the anti-doping rules, but they do not themselves constitute mandatory requirements. Besides, the “Introduction and Scope” of the RMHD Guidelines underlines that the Guidelines are not mandatory but are intended to provide clarity and additional guidance to anti-doping organisations as to the most efficient, effective and responsible way of discharging their responsibilities in terms of results management.

7. In order to determine a violation of the Complicity article, intent is to be determined based on the conduct of the individual charged with the alleged violation, not the person who himself/herself is the subject of the doping control. In this context, intent refers simply to the intent to act, not necessarily to the intent to achieve the result or to commit a doping violation. The act of encouragement itself constitutes sufficient intent for the purposes of Article 2.9 WADC.

8. The act of encouraging an anti-doping rule violation necessarily occurs before any commission of the ADRV that has been encouraged. Therefore, no underlying ADRV is required for the purposes of Article 2.9 WADC.

9. As complicity is an intentional ADRV, no reduction is permitted below the two year minimum sanction on grounds of No Significant Fault or Negligence. Consequently, a one-year period of ineligibility cannot be imposed on grounds of proportionality, since such decision departs from the mandated minimum set out in the WADC. The deciding body must impose a sanction that respects the applicable rules, including the mandated two-year minimum. Further reduction on the basis of proportionality is not acceptable. The WADC has been found repeatedly to be proportional in its approach to sanctions, and the question of fault has already been built into its assessment of length of sanction.

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Mr. Scott Salmond is a former Senior Vice President and Head of Men’s Elite Performance for Hockey Canada.

On 26 July 2018 the Disciplinary Board of the International Ice Hockey Federation (IIHF) determined that Mr. Salmond had committed an anti-doping rule violation in December 2017 when he allegedly instructed Mr. Brandon Kozun, a member of the National Ice Hockey Team of Canada, to refuse sample collection during a doping control. As a result of his actions, Mr. Salmond was suspended from all ice hockey activities for a period of one year.

Hereafter both Mr. Salmond and the World Anti-Doping Agency (WADA) appealed the IIHF decision with the Court of Arbitration for Sport (CAS).

WADA seeked to increase Mr. Salmond’s period of ineligibility to between two to four years. By contrast Mr. Salmond seeked a finding that he did not commit an anti-doping rule violation, or alternatively, apply the principle of proportionality to reduce the period of ineligibility to less than 12 months.

Mr. Salmond alleged that did not commit an ADRV because various departures from the International Standard for Testing and Investigations and associated rules that occurred on 12 December 2017 caused the alleged doping violation.

Both WADA and the IIHF contended that Mr. Salmond explicitly and intentionally instructed Mr. Kozun not to provide a sample and thus intended the actions he undertook.

They disputed Mr. Salmond's attempts to associate state-sponsored doping control manipulations in Russia with the events that took place on 12 December 2017. Further they argued that the sample collection was never abandoned and there were no departures from the ISTI and associated rules.

Regarding preliminary procedural matters the Panel determines:

• to deny Mr. Salmond's request that the case file in Mr. Kozun's procedure be turned over to Mr. Salmond;
• it had no access to all the original video footage that recorded the events in question;
• the witness statement of the WADA Director of Standards and Harmonization was not admitted.

Following assessment of the evidence and the Parties' written and oral submissions the Panel concludes:

• Mr. Salmond and its sports offial were seeking retrospectively to put the best construction possible on the unfortunate events of that morning in order to justify Mr. Salmond's actions, uncharacteristic as they may have been.
• The sample collection was never abondoned but concluded when Mr. Salmond instructed Mr. Kozun not to provide a sample.
• Mr. Salmond did not successfully establish any departures from the ISTI and, if (quod non) he had established any, these could not reasonably (or sensibly, based on the facts presented) have caused the ADRV in the present case.
• The IIHF was not estopped from asserting that Mr. Salmond committed and ADRV since IIHF (via IDTM) was largely responsible for the events of 12 December 2017.
• Mr. Salmond must have known or should have known as an experienced executive in Hockey Canada, having participated in over 200 doping controls, that the failure or the refusal of Mr. Kozun to submit to doping control could constitute an ADRV.
• Mr. Salmond intentionally encouraged Mr. Kozun to not submit a sample, and that not submitting a sample once doping control has been properly notified is an ADRV, within the meaning of Article 2.9 of the WADC.

Therefore the Court of Arbitration for Sport decides on 6 March 2020 that:

1.) The appeal filed by Mr. Scott Salmond on 4 September 2018 against the International Ice Hockey Federation with respect to the decision of the Disciplinary Board of the IIHF dated 26 July 2018 is dismissed.

2.) The appeal filed by the World Anti-Doping Agency on 4 October 2018 against the International Ice Hockey Federation and Mr. Scott Salmond with respect the decision of the Disciplinary Board of the IIHF dated 26 July 2018 is upheld.

3.) Mr. Scott Salmond is sanctioned with a two-year period of ineligibility as from 1 June 2018.

4.) (…).

5.) (…).

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

CAS 2019/A/6541 Hiromasa Fujimori v. Fédération Internationale de Natation (FINA)

Related case:

FINA 2019 FINA vs Hiromasa Fujimori
October 31, 2019

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• Aquatics (swimming)
• Doping (methylephedrine)
• Proof of the source of the prohibited substance required to reduce the period of ineligibility
• Balance of probability
• Proportionality of the sanction
• Imposition of an “alternative solution”
• Measure of the sanction

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1. In order to benefit from a fault related reduction, an athlete must prove the source of the prohibited substance. The applicable standard of proof for an athlete to establish the source of the prohibited substance and that there was no significant fault or negligence is by a balance of probability. It is not sufficient for an athlete merely to make protestations of innocence and to suggest that the prohibited substance must have entered his/her body inadvertently from some supplement, medicine or other product. An athlete must adduce concrete evidence to demonstrate that a particular supplement, medication or other product that the athlete took contained the substance in question.

2. The meaning of “by a balance of probability” is that the occurrence of the scenario suggested by the athlete must be more likely than its non-occurrence and not the most likely among competing scenarios. There is no need to decide which is the most likely between two or more competing scenarios, but rather the athlete must prove that the chain of events presented by him/her did happen, more likely than not. Of course, the athlete is allowed to address other scenarios put forward in an effort to support his/her position. However, the other party does not have the burden of proving the prevailing likelihood of a different scenario and it is not obliged to put forward any other competing scenarios.

3. The principle of proportionality is embodied in the provisions of Article 10.5 of the World Anti-Doping Code (WADC). The “No Significant Fault or Negligence” and “No Fault or Negligence” exceptions to an otherwise strict liability anti-doping rule are indeed embodiments of the proportionality, and there is no gap in the rules that may allow the principle of proportionality to be utilized. Even an “uncomfortable feeling” regarding a sanction mandated in the rules is not sufficient to invoke the principle of proportionality where the applicable rules include a sanctioning regime which is proportionate and contains clear and concise mechanism which allows for a reduction of the applicable sanction.

4. There is no basis to find ways outside of the rules to circumvent the application of the provisions of the 2015 WADC and to impose “alternative solutions” to a decision based on the simple application of the rules and regulations in force.

5. The measure of the sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rules can be reviewed only when the sanction is evidently and grossly disproportionate to the offence.

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In February 2019 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Japanese swimmer Hiromasa Fujimori after his A and B samples tested positive for the prohibited substance Methylephedrine in an extreme low estimated concentration of 16 picograms/mL.

Consequently the FINA Doping Panel decided on 31 October 2019 to impose a 2 year period of ineligibility on the Athlete, starting backdated on 1 January 2019.

In the complete and reasoned Decision the FINA Doping Panel went into substantial lengths to highlight the honesty and integrity of the Athlete. Against this analysis of the Athlete’s character, the FINA Doping Panel made it evident that it was bound to apply the rules and that it was limited by these rules and mandated to impose a sanction which it did not deem justified or appropriate for the Athlete’s fault.

Hereafter in October 2019 the Athlete appealed the FINA Decision of 31 October 2019 with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to annul the appealed Decision and to impose a reprimand or a reduced sanction.

The Athlete admitted the violation and denied the intentional use of the substance. He argued that he he identified the source of the prohibited substance and can prove No Significant Fault or Negligence or Negligence, or that the sanction is otherwise neither proportionate nor justified.

FINA accepted that the violation was not intentional and acknowledged that there were substantial delays in the procedure. Nevertheless it requested to dismiss the appeal and to uphold the appealed Decision.

The Sole Arbitrator remarks that there are four main issues which need to be addressed:

1. Was the Athlete able to prove the source of the prohibited substance allowing him to benefit from a reduction of the period of ineligibility?
2. Is the period of ineligibility proportionate or should it otherwise be eliminated or reduced?
3. Should an alternative solution be imposed?
4. When should the period if ineligibility commence?

The Sole Arbitrator concludes that the Athlete failed to establish the origin of the Prohibited Substance and therefore cannot enjoy a reduction of the sanction under Rule 10.5.1 FINA DC. It is inappropriate to circumvent the application of the applicable rules by imposing the principle of proportionality which is already embodied in the FINA DC rules or by seeking an alternate solution.

There is no justification not to confirm the 2 year period of ineligibility issued by the FINA Doping Panel in application of Rule 10.2.2 FINA DC. The Sole Arbitrator further refuses to replace his discretion with that of the FINA Doping Panel and modify the start date of the sanction which was already backdated to shortly after the sample collection date.

Therefore the Court of Arbitration for Sport decides on 6 March 2020 that:

1.) The appeal filed by Mr Hiromasa Fujimori on 28 October 2019 against the decision rendered on 27 August 2019 by the Doping Panel of the Federation Internationale de Natation is dismissed.

2.) The decision rendered on 27 August 2019 by the Doping Panel of the Federation Internationale de Natation in the case relating to Mr Hiromasa Fujimori is confirmed.

3.) (…).

4.) (…).

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

CAS 2019/A/6313 Jarrion Lawson v. International Association of Athletics Federations

Related case:

IAAF 2019 IAAF vs Jarrion Lawson
May 24, 2019

On 24 May 2019 the IAAF Disciplinary Tribunal decided to impose a 4 year period of ineligibility on the Athlete after he tested positive for the prohibited substance Trenbolone.

In First Instance the IAAF Panel was comfortable satisfied that the Athlete committed the Anti-Doping Rule Violation and did not accept that the meat the Athlete ate in the Restaurant in question was the likely source of the positive test. The Panel deemed that the Athlete failed to prove that his admitted violation was not intentional. In the Panel’s view the Athlete had established a possible, but not a probable case of lack of intention.

Hereafter in June 2019 the Athlete appealed the IAAF decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the IAAF decision of 24 May 2019 on the basis of No Fault or Negligence or to impose a reduced sanction.

The Athlete’s raised the following assertions:

1.) The IAAF Disciplinary Tribunal was misled by Dr. Ayotte that, in her experience, every Trenbolone level she had ever reviewed was indeed as low as - or similarly low as – the Athlete's levels. However, in reality, the Athlete's Trenbolone levels in his A and B Samples were the lowest seen since 2013.

2.) The Athlete's burden to prove meat contamination was made more difficult by the IAAFs inexcusable failure to report his positive test results for almost 2 months after the test. This was a breach of the IAAF's duty pursuant to Article 7.3 of the WADC which requires anti-doping organizations to "promptly notify" athletes of positive test results. During this 2-month delay, the opportunity to secure vital evidence was lost.

3.) The Athlete underwent a hair sample test, as soon as he was notified of the positive test. The expert found that the Athlete's hair was clean and produced no positive results for Trenbolone.

4.) In the United States, Trenbolone use on cattle is legal. However, compliance with good veterinary practices cannot be assumed and injections of the substance into areas other than the ear is possible due to inadequate immobilization. The sudden increase in positive tests at the Montreal lab coincides with the decrease in inspections of beef because of the Trump administration. Even Dr. Ayotte commented that the risk of beef contamination in the United States is now on par with the risk of beef contamination in Mexico.

5.) The Athlete was routinely tested (20 times) by USADA. It was not his fault his last test was 52 days prior and he cannot be faulted for the gap between the two tests.

The IAAF’s contended that:

1.) There is no reported example of any cattle being subject to an administration of Trenbolone directly into the longissimus muscle nor would it make commercial or farming sense.

2.) Old cases cannot be relied upon because the cases cited involved findings of fact and regardless CAS cases are not binding.

3.) The alleged meat contamination would require two rare events: an off-site injection into longissimus and serving Athlete a cut of meat with the injection site.

4.) An accidental injection can be excluded because it would be hard to penetrate skin and the way the animal is secured would make it hard to accidentally injected into the body.

5.) Hair analysis does not rule out a single use.

6.) The polygraph examination was inadmissible, as ruled in previous CAS decisions.

The Panel assessed and addressed whether the Athlete has provided sufficient evidence to prove that his positive result was unintentional. In this regard the Panel's conclusions differ from those of the Disciplinary Tribunal:

• A.) the scientific evidence, such as it is, showed that it was reasonably plausible that the positive urine sample on 2 June 2018 resulted from consumption of beef the previous day which was contaminated by a hormone implant;
• B.) the Athlete's credibility and history, supported by the tests which he volunteered and the evidence of his manager and trainer, go beyond a mere denial and corroborate his explanation;
• C.) common sense must count strongly against it being a mere coincidence that he tested positive, for such a tiny amount of a dangerous and illegal prohibited substance as to be undetectable in his hair, and for no rational benefit, so soon after having eaten beef from hormone-treated cattle (after numerous tests over his previous career, always negative including tests during a period of injury in 2017/2018 and in competition on 20 May 2018);
• D.) the Panel finds it more likely than not, that the origin of the Epitrenbolone was contaminated beef innocently consumed and that this is indeed one of those rare cases where the impossibility of proving scientifically that the steak consumed did or did not contain hormone residues does not debar the athlete from establishing his innocent lack of intent under Art 10.2.1(a) of the IAAF ADR.

Therefore the Court of Arbitration for Sport decides on 6 March 2020 that:

1.) The appeal filed by Mr. Jarrion Lawson against the International Association of Athletics Federation with respect to the decision rendered by the IAAF Disciplinary Tribunal on 24 May 2019 is upheld.

2.) The decision rendered by the IAAF Disciplinary Tribunal on 24 May 2019 is set aside.

3.) Mr. Jarrion Lawson 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 him.

4.) This award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Mr. Jarrion Lawson which is retained by the CAS.

5.) The International Association of Athletics Federation is ordered to pay a contribution of CHF 10,000 (ten thousand Swiss Francs) toward the legal fees of Mr. Jarrion Lawson.

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

CAS 2019/A/6148 World Anti-Doping Agency v. Sun Yang & Fédération Internationale de Natation

Related cases:

• FINA 2019 FINA vs Sun Yang
  January 3, 2019
• Swiss Federal Court 4A_413_2019 Sun Yang vs WADA & FINA
  October 28, 2019
• Swiss Federal Court 4A_287_2019 Sun Yang vs WADA & FINA
  January 6, 2020
• CAS 2019_A_6148 WADA vs Sun Yang & FINA - Final Award
  June 22, 2021
• Swiss Federal Court 4A_318-2020 Sun Yang vs WADA & FINA
  December 22, 2020
• Swiss Federal Court 4A_406-2021 Sun Yang vs WADA & FINA
  February 14, 2021

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On the evening of 4 September 2018, an attempt was made to collect blood and urine samples from the Athlete Sun Yang at the Athlete’s residence compound. This was an out-of-competition (OOC) sample collection mission. The mission was authorized by FINA as the Testing Authority. FINA has Results Management Authority. However, International Doping Tests and Management (IDTM) was the Sample Collection Authority. IDTM attempted to collect blood and urine from the Athlete during the Athlete’s previously selected ‘60-minute’ time slot from 10 p.m. to 11 p.m. on September 4, 2018.

No blood or urine samples were ever analysed as a result of the OOC mission conducted by IDTM. Blood was collected but the blood container was destroyed and the collected blood was never sent to the relevant WADA accredited laboratory. The blood remains in the possession of the Athlete’s doctor. No urine sample was provided by the Athlete. It is safe to describe the entire OOC mission as problematic, highly unusual and, at times, confrontational. Both FINA and the Athlete offer vastly different explanations regarding what happened, why the evening unfolded as it did and, critically, what consequences must result.

At first the Athlete co-operated with the sample collection and provided a blood sample but the Athlete became suspicious when he discovered that one Doping Control Assistance (DCA) had taken photos of him on his phone inside the Doping Control Station. The Athlete already had questioned whether the Doping Control Officers (DCOs) had the correct paperwork.

The Athlete and his doctor believed that both the DCA and the Blood Collection Assistance (BCA) were not properly authorized by IDTM and proposed that the secure blood container be broken with a hammer to access the blood vial and thus destroy the integrity of the blood samples that had been collected. The DCO consistently warned the Athlete and his doctor that their actions could constitute an anti-doping rule violation but she could not prevent that they destroyed the blood container to acces the vials. After this action the IDTM supervisor instructed the DCO to end the testing mission and document in detail, with notes and photographs, exactly what had happened at the Doping Control Station.

As a result in October 2018 FINA reported an anti-doping rule violation against the Athlete for tampering and Refusal of Failing to Submit. FINA contended that the Athlete, and others acting on his instructions, destroyed the collected blood sample container thereby tampering with and subverting proper doping control processes. However the FINA Doping Panel decided on 3 January 2019 that the Athlete had not committed an anti-doping rule violation under FINA DC 2.3 (Refusing or Failing to Submit) or DC 2.5 (Tampering or Attempted Tampering).

In the opinion of the FINA Doping Panel the OOC sample collection session conducted by IDTM on behalf of FINA on 4 September 2018 was not properly commenced. The lack of “official documentation” from IDTM for the DCA and the BCA meant that the Athlete was not properly notified. The request to provide a urine sample was not properly accomplished. The blood that was initially collected (and subsequently destroyed) was not collected with proper authorization and thus was not properly a “Sample” as that term is used in the ISTI and defined in the FINA DC. As a result, the sample collection session initiated by IDTM on 4 September 2018 is invalid and void. No FINA DC rule violations can result therefrom.

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Hereafter in February 2019 the World Anti-Doping Agency (WADA) appealed the FINA decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the FINA decision of 3 January 2019 and to impose an appropriate period of ineligibility on the Athlete for Tampering and Evading, Refusing or Failing to Submit to Sample Collection.

WADA contended that the Athlete committed the anti-doping rule violations by:
1.) refusing to allow the DCO to remove the blood samples after collection;
2.) breaking or assisting in breaking one of the blood sample containers;
3.) refusing, when requested by the DCO, to return the damaged container and the undamaged container with the blood samples;
4.) urinating without a chaperone or authorisation from the DCO;
5.) destroying the Doping Control Form containing the Athlete’s signature acknowledging notification for collection of the blood samples;
6.) withdrawing his consent to the collection of his blood samples after his personal doctor arrived at the sample collection.

The Athlete argued that he was not properly notified and that none of IDTM’s Sample Collection Personnel complied with their identification requirement during the notification process on 4 September 2018.
He denied that there was intent or fraudulent conduct to tamper, as he had nothing to hide. Rather, the Athlete maintained that he relied on the instructions and advice of his entourage, who are said to have informed him that the DCO could not conduct the testing because of the lack of accreditation and authorisation.
Further the Athlete claimed that the DCO did not comply with her duties in informing the Athlete of the possible consequences of a failure to comply with the sample collection process.

The Panel disagrees the Athlete’s contention that IDTM was required to carry and show to him a (specific and individual) Authorisation Letter. The Panel establish that the DCO, the DCA and the BCA complied with the ISTI identification requirements and that they were properly accredited, authorized to be involved in collecting samples from the Athlete. As a result the Panel finds that IDTM’s Sample Collection Personnel complied with all applicable notification requirements as set out in the ISTI.

The Panel considers that it would be totally inappropriate and unprofessional for a Chaperone/DCA to take any photographs or videos of an athlete in the course of a sample collection process, unless there are compelling reasons to do so, such as the gathering of evidence or for reasons of record keeping.

However, the Panel finds that the mere fact that the DCA acted inappropriately in taking at least 3 photographs of the Athlete did not, as such, warrant the Athlete to abort the entire (blood and urine) testing mission. Nor could it, of itself, in any way justify the acts taken by the Athlete. The correct course of action, in the view of the Panel, would have been for the Athlete to record his objection as to the entire process, at the time (and, if necessary, subsequently), and to allow the DCO to leave with the blood samples already collected.

The Panel is satisfied in establishing that the DCO did repeatedly warn the Athlete and duly informed him about the consequences of his failure to comply. This is based on the testimony of the DCO the BCA and the IDTM supervisor.
The Panel holds that the Athlete failed to establish that the DCO aborted the sample collection session, or that it was her suggestion to take and destroy the blood samples.
The Panel further holds that the Athlete’s subsidiary reasoning, that the blood collected from the Athlete was mere medical waste, because of the DCO’s alleged failure to warn the Athlete about the consequences in accordance with the IST, and the DCO’s alleged decision to discontinue the test, is also to be dismissed.

As a result the Panel concludes that the Athlete failed to establish that he had a compelling justification to act as he did and forego the Doping Control and accordingly that the Athlete committed a tampering violation under Article 2.5 FINA DC. Since this is the Athlete’s second anti-doping rule violation the Panel deems that an 8 year period of ineligibility is to be imposed on the Athlete without disqualification of his results prior to the sanction.

Therefore the Court of Arbitration for Sport decides on 28 February 2020:

1.) The appeal filed on 14 February 2019 by the World Anti-Doping Agency against the decision issued on 3 January 2019 by the Doping Panel of the Fédération Internationale de Natation is upheld.
2.) The decision issued on 3 January 2019 by the Doping Panel of the Fédération Internationale de Natation is set aside.
3.) Mr Sun Yang is sanctioned with an 8 (eight) year period of ineligibility, commencing on the date of the present arbitral award.
4.) This arbitral award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by the World Anti-Doping Agency, which is retained by CAS.
5.) Mr Sun Yang and the Fédération Internationale de Natation shall bear their own costs and are ordered to each pay to the World Anti-Doping Agency an amount of CHF 15,000 (fifteen thousand Swiss Francs) as a contribution towards the legal fees and other expenses incurred in connection with these arbitration proceedings.
6.) All other and further motions or prayers for relief are dismissed.